SAN     FRANCISCO.     C 


focwx^ . 


THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


PRINCIPLES 


LAW  OF  REAL  PROPERTY. 


INTENDED    AS 


FOR 

THE  USE  OF  STUDENTS  IN  CONVEYANCING. 

BY 

JOSHUA  WILLIAMS,  ESQ., 

OF   LINCOLN'S   INN,   ONE   OF    HER   MAJESTY'S   COUNSEL. 


Jifth  ^mmant,  fvm  t\u  WmXWh  OEngUafo  Mitim, 

WITH  THE  NOTES  AND  REFERENCES  TO  THE  PREVIOUS  AMERICAN  EDITIONS 

BY 

WILLIAM   HENRY   RAWLE 

AND    THE 

Hon.  JAMES  T.  MITCHELL, 

AND 

ADDITIONAL    NOTES    AND    REFERENCES 

BY 

E.  COPPEE  MITCHELL. 


PHILADELPHIA: 

T.   &    J.   W.   JOHNSON   &   CO., 

LAW  BOOKSELLERS    AND    PUBLISHERS, 
535  CHESTNUT  STREET. 

1879. 


T 

uH*73&r 


Entered,  according  to  Act  of  Congress,  in  the  year  1879,  by 

T.   &  J.  W.   JOHNSON    &   CO., 

In  the  Office  of  the  Librarian  of  Congress  at  Washington,  D.  C. 


Entered,  according  to  Act  of  Congress,  in  the  year  1872,  by 

T.    &   J.    W.   JOHNSON    &   CO., 

In  the  Office  of  the  Librarian  of  Congress  at  Washington,  D.  C. 


Entered,  according  to  Act  of  Congress,  in  the  year  1866,  by 

T.    &   J.   W.   JOHNSON    &   CO., 

In  the  Clerk's  Office  of  the  District  Court  for  the  Eastern  District  of  Pennsylvania, 


HENRY    1!-    ASI1MEAI).    PRINTER, 
1102  &  1104  Sanaom  Street. 


ADVERTISEMENT 

TO  THE  PRESENT  AMERICAN  EDITION. 


In  this  edition,  the  corrections  and  additions  made  by  the 
author  in  the  last  English  edition  have  been  accurately  followed. 
The  American  notes  of  the  former  editors  have  been  found  to 
be  so  full  and  well  adapted  to  their  purpose  as  to  render  sub- 
stantial additions  unnecessary.  They  have,  therefore,  been  re- 
tained without  change.  Those  of  Mr,  Rawle  are  distinguished 
by  the  letter  K,  and  those  of  Judge  Mitchell  by  the  letter  M. ; 
those  without  signature  are  by  the  present  editor. 

The  paging  is  that  of  the  last  English  edition. 


Philadelphia,   October,  1879. 


B6V879 


ADVERTISEMENT 

TO  THE  TWELFTH  ENGLISH  EDITION. 


In  this  Edition  the  alterations  which  have  taken  place  in  the 
law  since  the  publication  of  the  last  Edition  have  been  incorpo- 
rated in  the  text.  The  author  has  been  assisted  in  the  prepa- 
ration of  the  present  edition  by  his  son,  Mr.  Thomas  Cyprian 
Williams,  of  Lincoln's  Inn,  Barrister-at-law. 


3,  Stone  Buildings,  Lincoln's  Inn, 
September^  1877. 


PREFACE 

TO  THE  FIRST  EDITION. 


The  Author  had  rather  that  the  following  pages  should  speak 
for  themselves,  than  that  he  should  speak  for  them.  They  are 
intended  to  supply,  what  he  has  long  felt  to  be  a  desideratum,  a 
First  Book  for  the  use  of  students  in  conveyancing,  as  easy  and 
readable  as  the  nature  of  the  subject  will  allow.  In  attempting 
this  object  he  has  not  always  followed  the  old  beaten  track,  but 
has  pursued  the  more  difficult,  yet  more  interesting,  course  of 
original  investigation.  He  has  endeavored  to  lead  the  student 
rather  to  work  out  his  knowledge  for  himself,  than  to  be  content 
to  gather  fragments  at  the  hand  of  authority.  If  the  student 
wishes  to  become  an  adept  in  the  practice  of  conveyancing,  he 
must  first  be  a  master  of  the  science ;  and  if  he  would  master 
the  science,  he  should  first  trace  out  to  their  sources  those 
great  and  leading  principles,  which,  when  well  known,  give 
easy  access  to  innumerable  minute  details.  The  object  of 
the  present  work  is  not,  therefore,  to  cram  the  student  with 
learning,  but  rather  to  quicken  his  appetite  for  a  kind  of 
knowledge  which  seldom  appears  very  palatable  at  first.  It 
does  not  profess  to  present  him  with  so  ample  and  varied  an 
entertainment  as  is  afforded  by  Blackstone  in  his  "  Commen- 


VI  PREFACE. 

taries ;"  neither,  on  the  other  hand,  is  it  as  sparing  and  frugal 
as    the    "Principles"  of  Mr.  Watkins ;    nor,    it   is   hoped,    so 
indigestible  as  the  well-packed  "  Compendium"  of  Mr.  Burton. 
This  work  was  commenced  many  years  ago;    and  it  may  be 
right  to  state  that  the  substance  of  the  introductory  chapter  has 
already  appeared  before  the  public  in  the  shape  of  an  article, 
"  On  the  Division  of  Property  into  Real  and  Personal,"  in  the 
"Jurist"  newspaper  for  7th  September,  1839.     The  recent  Act 
to  simplify  the  transfer  of  property  has  occasioned  many  parts 
of  the  work  to  be  rewritten.     But  as  this  Act  has  so  great  a, 
tendency  to  bewilder  the  student,  the  Author  has  since  lost  no 
time  in  committing  his  manuscript  to  the  press,  in  hopes  that  he 
may  be  the  means  of  bringing  the  minds  of  such. beginners  as 
may  peruse  his  pages  to  that  tone  of  quiet  perseverance  which 
alone  can  enable  them  to  grapple  with  the  increasing  difficulties 
of  Real  Property  Law.     From  the  elder  members  of  his  •  pro- 
fession he  requests,  and  has   no  doubt  of  obtaining,  a  candid 
judgment  of  his  performance  of  a  most  difficult  task.     To  give 
to  each  principle  its  adequate  importance, — from  the  crowds  of 
illustrations  to  present  the  best, — to  write  a  book  readable,  yet 
useful  for  reference, — to  avoid  plagiarism,  and  yet  abide   by 
authority, — is  indeed  no  easy  matter.     That  in  all  this  he  has 
succeeded  he  can  scarcely  hope.     How  far  he   has  advanced 
towards  it  must  be  left  for  the  profession  to  decide. 


3,  \i;u  Square,  Lincoln's  Inn, 
'l\Uk  November ,  1S44. 


TABLE  OF  CONTENTS. 


INTRODUCTORY  CHAPTER. 


OF    THE   CLASSES    OF    PROPERTY 


PAGE 
1 


PART   I. 

OF  CORPOREAL  HEREDITAMENTS 13 

CHAP.  I. 

OF    AN    ESTATE    FOR   LIFE       

CHAP.  II. 
OF   AN    ESTATE    TAIL      


16 


35 


CHAP.  III. 

OF   AN    ESATE    IN   FEE    SIMPLE 60 

CHAP.  IV. 

OF  THE    DESCENT    OF   AN   ESTATE   IN   FEE    SIMPLE  .  .  .    100 

CHAP.  V. 
OF   THE   TENURE    OF   AN   ESTATE    IN   FEE    SIMPLE  .  .  .    117 

CHAP.  VI. 
OF   JOINT   TENANTS    AND   TENANTS    IN   COMMON       ....    132 


viii  TABLE    OF    CONTENTS. 

CHAP.  VII. 
OF    A    FEOFFMENT  ..... 

CHAP.  VIII. 
OF    USES    AND    TRUSTS 


PAGE 

140 


155 


CHAP.  IX. 

OF    A    MODERN    CONVEYANCE 180 

CHAP.  X. 
OF    A    WILL    OF    LANDS 203 

CHAP.  XI. 

OF    THE    MUTUAL   RIGHTS    OF    HUSBAND    AND    WIFE  .  .  .    223 


PART   II. 
OF  INCORPOREAL  HEREDITAMENTS       .         .         .         .239 

CHAP.  I. 

OF    A    REVERSION   AND    A    VESTED    REMAINDER  ....    241 

CHAP.  II. 
OF    A    CONTINGENT    REMAINDER 262 

CHAP.  III. 
OF   AN    EXECUTORY   INTEREST  .......    289 

Section  1. 
OF  THE  MEANS  BY  WHICH  EXECUTORY  INTERESTS  MAY  BE  CREATED   .    289 

Section  2. 
OF  THE  TIME  WITHIN  WHICH  EXECUTORY  INTERESTS  MUST  ARISE      .    317 

CHAP.  IV. 
OF    HEREDITAMENTS    PURELY    INCORPOREAL 322 


TABLE    OF   CONTENTS.  ix 

PART    III. 

PAGE 

OF  COPYHOLDS 349 

CHAP  I. 
OF    ESTATES   IN    COPYHOLDS 353 

chap.  ii. 

OF    THE    ALIENATION    OF   COPYHOLDS 372 


PART    IV.  , 
OF  PERSONAL  INTERESTS  IN  REAL  ESTATE       .         .  386 

CHAP.  I. 

OF    A    TERM    OF   YEARS 388 

CHAP.  II. 

OF    A    MORTGAGE    DEBT  .  .  .  .  .  .  .    421 

PART    V. 
OF  TITLE m  443- 


Appendix  (A.) 459 

Appendix  (B.) #  475 

Appendix  (C.) 439 

Appendix  (D.) 522 

Appendix  (E.) <  51g 

Appendix  (F.)  .         .         .  • 529 

Appendix  (G.) #  531 

lNDEX '.         .         .533 


INDEX  TO  CASES  CITED  IN  THE  TEXT. 


THE  PAGES  REFERRED  TO  ARE  THOSE  BETWEEN  BRACKETS  [     ]. 


fe  V. 


Lee 


A. 

Abe-methy,  Boddington  v 
Ackroyd  v.  Smith 
Acocks  v.  Phillips 
Adams,  Doe  d.  Barney 
Rowley  v. 
v.  Savage 
Smith  v. 
Adsetts  v.  Hives 
Ainslie  v.  Harcourt 
Albany's  case 
Aldborough,  Lord,  v.  Trye 
Aldous  v.  Cornwell 
Allan  v.  Backhouse 
Allen  v.  Allen    . 
Festing  v. 
v.  Walker 
Alston  v.  Atlay 
Ambrose,  Hodgson  and  W 
Amcotts,  Ingilby  v 

Amey,  Doe  v. 

Amherst,  Earl  of,  Duke  o 

Anderson  v.  Pignet 

Andrew  v.  Motley 

Andrews  v.  Hulse 

Annesley,  Tooker  v. 

Anon.,  Cro.  Eliz.  46 

Anon.  v.  Cooper 

Anson,  Lord,  Winter 

Anstey,  Saward  v. 

Appleton  v.  Rowley 

Archer's  case 

Arden  v.  Wilson 

Armitage,  Earl  of  Cardig 

Armstrong,  Tullett  v 

Arnold,  Cattley  v. 

Arthur,  Vyvyan  v. 

Ashton  v.  Jones 

Aston,  Yates  v. 

Atherstone,  Nickells 

Atkinson  v.  Baker 

Atlay,  Alston  v. 

Att.-Gen.  v.  Lord  Braybrooke 
Casberd  v. 
v.  Chambers 
Floyer 


PAGE 

384 
329 
245 
424 
397 
314 
385 
149 
409 
311 
4(33 
149 
409 
59,  66 
271 
17C 
344 
211 
278 
86 
25 

238,  420 
208 
352 
25 
184 
406,  407 
433 
333 
228 
264 
370 
14 
225 


9c 


20 

397 

73 

436 

409 

20 

344 

286 

91 

327 

286,  311 


Att.-Gen.  v.  Glyn 

v.  Hallett  . 

v.  Hamilton 

v.  Littledale 

v.  Lord  Middleton 

v.  Parsons    .    .  11! 

v.  Sefton,  Earl  of 

v.  Sibthorp 

v.  Sitwell 

v.  Smythe , 
Audley,  Jee  v.    . 
Austin,  Webb  v. 
Aveline  v.  Whisson 
Aw  dry,  Cloves  v. 
Aynsley  v.  Glover 

B. 

Backhouse,  Allen  v.  . 
Bonomi  v. 
Few  v.     . 
Bacon  v.  Procter 
Baggett  v.  Meux 
Bagot  v.  Bagot  . 
Bailey  v.  Elkins 
Keppel  v. 
Bainbridge,  Hall  v.     . 
Baird  v.  Fortune 
Baker,  Atkinson  v.     . 
v.  Gray  . 
v.  Gostling 
Thornborough  v. 
Banks,  Right  d.  Taylor  v. 
Barber,  Mackintosh  v. 
Barker  v.  Barker 
Payne  v. 
Prescott  v. 
Re  . 
Barlow  v.  Rhodes 
Wright  v. 
Barnes  v.  Mawson 
Harnett,  Muggleton  v.       102,  469,  4 
Barrett  v.  Rolph 
Harrington  v.  Liddell 
Barrow  v.  Wadkiu 
Bartholomew,  Drybutter  v. 


PACE 

7:; 
288 
138 
287 
286 
,  350 
287 
286 
343 
286 
55 
395 
153 
302 
459 


409 

14 

331 

225 

225 

23 

81 

397 

148 

329 

20 

442 

40(3 

387 

3(36 

314 

22  7 

473 

403 

311 

329 

297 

510 

,  473 

406 

321 

L65 

8 


Xll 


INDEX    TO    CASES    CITED. 


PAGE 

Bartle,  Doe  d.  Nethercote  v. 

.     377 

Bartlett,  Rose  v. 

.     403 

Bassett,  Upton  v. 

79 

Bateman  v.  Hodgkin 

.     321 

Bates  v.  Johnson 

.     439 

Baxter,  Mainwaring  v. 

51 

Beale  v   Symonds 

.      165 

Beardnian  v.  Wilson  . 

406 

Bearpark  v.  Hutchinson     . 

.     335 

Beaufort,  Duke   of,  v.  Mayor  I 

iC.    0 

f 

Swansea 

328 

Duke  of,  v.  Phillips 

86 

Beaumont  v.  Marquis  of  Salisbi 

iry 

406 

Beavan  v.  Earl  of  Oxford  . 

87 

Beevor  v.  Luck  . 

442 

Belaney  v.  Belaney    . 

10 

Bell,  Cousett  v. 

25 

Bellamy  v.  Sabine 

93 

Beunet  v.  Bishop  of  Lincoln 

345 

v.  Box    . 

169 

Bennett  v.  Reeve 

49 

0,  493 

Bennison  v.  Cartwright 

460 

Benson  v.  Chester 

499 

Hentley,  Poole  v. 

393 

Berridge  v.  Ward 

327 

Berrington  v.  Scott    . 

54 

Betts  v.  Thompson     . 

32 

4,  489 

Beverley,  case  of  the  Provost  o: 

258 

Bewit,  Whitfield  v.     . 

23 

Bewley,  Noel  v.           . 

282 

Bickett  v.  Morris 

327 

Biggs,  Mestayer  v.               .         . 

331 

Bingham  v.  Woodgate 

356 

Bird  v.  Higginson 

392 

Birkbeck,  Cort  v. 

510 

Blackall,  Long  v. 

318 

Blackburn,  Harrison  v. 

184 

v.  Stables 

270 

Blackmore,  Mathew  v. 

436 

Blagrave,  Ppwys  v.    . 

24 

Blain,  Heelis  v.           .         .         . 

184 

Blake,  Perrin  v. 

21 

3,  255 

Shrapnell  v.    . 

430 

Bligh  v.  Brent    . 

8 

Bliss,  Dean  of  Ely  v. 

457 

Blissett,  Chapman  v. 

285 

Blood,  Creagb  v. 

409 

Blunt,  Griffith  v. 

319 

Blythe,  Westbrook  v. 

404 

Boddington  v.  Abernethy 

384 

Boen,  Yates  v.    . 

66 

Bolton,  Lord,  v.  Tomline   . 

392 

Bond  \.  Rosling 

392 

Bonham,  Farley  v.     . 

236 

Bonifaul  \ .  ( l-reenfield 

314 

Bonomi  v.  Backhouse 

14 

Booth,  .Snow  v.           .         .         . 

455 

Boothby,  Tunstall  v. 

96 

Borasti 

265 

Borman,  Scarborough  v.    . 

9 

5,  225 

PAGE 

Borrows  v:  Ellison 

454 

Bosanqnet,  Williams  v. 

396 

Bousfield,  Doe  d.  Robinson  v. 

354 

Bovey's,  Sir  Ralph,  case    . 

414 

Bower  v.  Cooper 

165 

Bowker  v.  Burdekin  . 

148 

Bowies',  Lewis,  case 

25 

Bowler,  Matthew  v.    . 

433 

Bowser  v.  Colby 

246 

v.  Maclean     . 

354 

Box,  Bennet  v.  . 

169 

Brace  v.  Duchess  of  Marlborou 

gh     85 

439 

Brackenbury  v.  Gibbons    . 

271 

Bradford  v.  Brownjohn 

409 

Brancker,  Cunliffe  v. 

271 

Brandon  v.  Robinson 

94,  95 

225 

Brandreth,  Lucas  v.  . 

19 

Braybrooke,  Lord,  Att.-Gen.  v 

286 

Brent,  Bligh  v.   . 

8 

Bridge  v.  Yates 

135 

Bridgewater,  Welden  v.     . 

499 

Bridgman,    Sir    Orlando,    case    and 

opinion  of 

499 

Bristow  v.  Warde 

276 

Brocklehurst,  Wardle  v.    . 

329 

Brogden,  Humphries  v. 

14 

Brooke  v.  Pearson 

95 

Brookes,  Millership  v. 

148 

Broughton  v.  James  . 

321 

Brown,  Caldecott  v.  . 

32 

Cattlin  v. 

274 

Scratton  v.     . 

328 

Willis  v. 

195 

Browne  v.  Browne,    . 

271 

Brownjohn,  Bradford  v. 

409 

Brownlow,  Earl,  Smith  v. 

.      324 

489 

Pate  v. 

499 

Brudenell  v.  Elwes     . 

'.        51 

274 

Brummell  v.  Macpherson  . 

398 

Brydges  v.  Brydges    . 

178 

Buckeridge  v.  Ingram 

8 

Buckland  v.  Pocknell 

433 

Buckley,  Earl  of  Stafford  v. 

42 

Frend  v. 

449 

v.  Howell    . 

309 

Burdekin,  Bowker  v. 

148 

Burdett  v.  Doe  d.  Spilsbury 

298 

Burges,  Hare  v. 

408 

v.  Lamb 

25 

Burgess  v.  Wheate     . 

".       18, 

165 

Burlington,  Earl  of,  Doe  d.  Gru 

bb,  v. 

355 

Buriell  v.  Dodd 

355, 

356 

Burroughes,  Wright  v. 

247 

Burt,  Edwards  v. 

463 

Busher,  app.,  Thompson,  resp., 

356 

Bustard's  case    . 

445 

Buttery  v.  Robinson 

333 

Butts,  Trower  v. 

270 

Byron,  Doe  d.  Wyatt  v. 

246 

Hall  v.    . 

324, 

489 

INDEX    TO    CASES    CITED. 


Xlll 


C. 


Cadell  v.  Palmer        ...        52, 

Caldecott  v.  Brown 

Oalmady  v.  Rowe 

( lalvin's  case 

Campbell  v.  Lucy 

Cann,  Ware  v.   . 

Canning  v.  Canning 

Cardigan,  Earl  of,  v.  Armitage 

Oarleton  v.  Leighton 

Carr  v.  Lambert 

Carter,  Parker  v. 

Cartwright,  Bennison  v.    . 

Corser  v. 
Casberd  v.  Attorney-General 
Catsmore,  Doe  d.  Tatum  v. 
Cattley  v.  Arnold 
Cattlin  v.  Brown 
Cattling,  Wills  v. 
Chadwick  v.  Turner 
Challis  v.  Doe  d.  Evers      . 
Chamberlain,  Cox  v. 
Chambers,  Attorney-General  v 
Champion,  Edwards  v. 
Chaudless,  Hall  v. 
Chapman  v.  Blisset   . 
v.  Gatcombe 
v.  Tanner 
Charlesworth,  Manners  v. 
Cheetham,  Lloyd  v.  . 
Cherry  v.  Heming 
Cheslyn,  Pearce  v.     . 
Chester,  Benson  v.     . 

Bishop  of,  Fox  v. 
v.  Willan     . 
Chetham  v.  Hoare 
( 'lu'vne,  Eccles  v. 
Chichester,  Rawe  v.  . 
Cholmeley,  Cockerell  v.    . 

v.  Paxton 
Chorley,  The  Queen  v. 
Christie  v.  Ovington 
Chudleigh's  case        .         .         .      159 
Clark,  Doe  d.  Spencer  v. 
Clarke,  Doe  v.    . 

v.  Franklin   .  23 

Clay  v.  Sharpe  . 
Clegg  v.  Fishwick 
Clements  v.  Sandaman 
Clere's,  Sir  Edward,  case 
Clifton,  Doe  d.  Hurst  v. 
Cloves  v.  Awdry 
Cockerell  v.  Cholmeley 
Colby,  Bowser  v. 
Cole,  Doe  d.  Were  v. 

v.  Sewell  . 

v.  West    London    and    Crystal 
Palace  Railway  Company 
Coles,  Hunt  v.  . 
Collins,  Doe  d.  Clements  v. 


PAGE 

318 

32 
328 

65 
207 

18 
104 

14 
278 
499 
229 
460 
221 

91 
148 

29 
274 
407 
221 
275 
302 
327 

59 
149 
285 
347 
433 
138 

96 
153 
393 
499 
344 
136 
455 
211 
409 
308 

25 
460 
116 
264 
362 
270 
303 
429 
409 

98 
302 
425 
302 
308 
246 
243 
274 

13 

171 
13 


V\CE 

Collins,  Eddleston  v. 

.     384 

Colt,  Prat  v.       .         .         . 

.      169 

Colvile  v.  Parker 

79 

Commissioners  of  Charitable  1 

)ona- 

tions  v.  Wybrants 

455 

Complin,  Goddard  v. 

.     439 

Consett  v.  Bell  . 

25 

Cooch  v.  Goodman    . 

.      152 

Cooke,  dem. 

14 

Hibbert  v.      . 

32 

Cooper,  Bower  v. 
Davies  v. 

.     165 

.     463 

v.  Emery 

.     463 

v.  France 

113,  475 

v.  Stephenson 
Anon.  v. 

.      464 
406,  407 

Copper  Miners'  Company,  Woo 
Coppinger  v.  Gubbins 
Corbet's,  Sir  Miles,  case    . 

d  v.   .      176 
24 

.     502 

Corbett,  The  Queen  v. 

.      384 

Corder  v.  Morgan 

.     429 

Cornwallis,  case  of  Lord   . 

.     366 

Cornwell,  Aldous  v.  . 

.      149 

Corrie,  Preece  v. 

.     406 

Corser  v.  Cartwright 

.     221 

Cort  v.  Birkbeck 

.     510 

Cottee  v.  Richardson 

.     405 

Court,  Earl  of  Sefton  v.     . 

.     494 

Courtenay,    Doe    d.    Earl    of 

Egre- 

mont  v.            ... 

.     409 

Cousins  v.  Phillips    . 

.      249 

Coventry,  Earl  of,  Hay  v. 

51,  274 

Cowbridge  Railway  Company, 
v.   . 

Guest 

88 

Cowell,  Vickers  v. 

.     435 

Cowley,  Earl,  v.  Wellesley 
Cox  v.  Chamberlain  . 

23 

.     302 

Doe  d.  Bastow  v. 

.     389 

v.  Dolman  . 

.     455 

Crachroode  and  Foiston's  case 

.      495 

Creagh  v.  Blood 
Crossley  v.  Lightowler 
Crump  d.  Woolley  v.  Norwood 
Cunliffe  v.  Brancker 

.     409 
.     460 
.     129 
.     271 

Curling  v.  Mills 

.     392 

Curtis  v.  Lukin 

.     321 

v.  Price  . 

.     260 

Cuthbertson  v.  Irving 

.      424 

Rowland  v.    . 

.     236 

Dallaway,  Hyde  v.     . 

456 

Dallingham,  Lady  of  Manor  of, 

Re- 

gina  v.    . 

382 

Dalton,  Re          .... 

66 

Damerell  v.  Protheroe 

367, 

494 

Danvers,  Doe  d.  Cooke  v. . 

355, 

356 

Darby,  Right  d.  Flower  v. 

389, 

390 

XIV 


INDEX    TO    CASES    CITED. 


PAGE 

Darby,  Smith  v. 

14 

Darke,  Tutton  v. 

.      245 

Davall  v.  New  River  Company  . 

.      165 

Davies  v.  Cooper 

Doe  d.  Dixie  v. 

.      463 
.     389 

Jones  v. 

.      415 

v.  Wescomb  . 

29 

Davison  v.  Gent 

.     409 

Dawes  v.  Hawkins 

.     327 

Day,  Doe  d.  Parsley  v. 
Duherley  v. 
Jeffs  v 

.     423 

.      408 
.      176 

v.  Merry     .... 
Death,  Smith  v. 

25 
.      311 

De  Beauvoir  v.  Owen 

.      457 

De  Burgh,  Lock  v.     . 

29 

De  Moleyn's  case 

85 

Dee,  Parker  v.   . 

81 

Dendy,  Simpson  v.    . 

.     327 

Dennett  v.  Pass 

.     337 

Dennison,  Lucas  v.    . 

.     456 

Dent  v.  Dent      .... 

32 

Dering.  Moneypenny  v. 
Dickin  v.  Hamer 

274,  276 
.     233 

Dimes  v.  Grand  Junction  Canal  Co 

ni- 

pany 

Dixon,  Doe  d.  Crosthwaite  v.    . 

.     379 
.      104 

v.  Gayfere 
Dodd,  Burrell  v. 

.     433 
355,  356 

Dodds  v.  Thompson  . 

.      333 

Doe  v.  Amey      .... 

86 

d   Barney  v.  Adams    . 
d.  Nethercote  v.  Bartle 

.      424 
.     377 

d.  Robinson  v.  Bousfield     . 

.      354 

d.  Spilsbury,  Burdett  v. 

.     298 

d.  Grubb  v.  Earl  of  Burlingtc 

n  .     355 

d.  Wyatt  v.  Byron 

.      246 

d.  Tatum  v.  Catsmore 

.      148 

d.  Evers,  Challis  v.     . 

.      275 

d.  Spencer  v.  Clark    . 

.     362 

v.  Clarke     .... 

.      270 

d.  Hurst  v.  Clifton      . 

.     425 

d.  Were  v.  Cole  . 

182,  243 

d.  Clements  v.  Collins 

13 

d.  Earl  of  Egremont  v.  Com 

te- 

nay      .... 

d.  Bastow  v.  Cox 

.     409 
.     389 

d.  Cook  v.  Danvers     . 

355,  356 

d.  Dixie  v.  Davies 

.     389 

(1.  Parsley  v.  Day 

d.  Crosthwaite  v.  Dixon 

.      423 
.      104 

d.  Curzon  v.  Edmonds 

.     454 

d.  Bloomfield  v.  Eyre 

.     300 

d.  Davies  v.  <  iatacre  . 

.     280 

d.  Fisher  v.  Giles 

.     425 

<1.  Muston  v.  Gladwin 

.     400 

d.  Walker  v.  Groves   . 

.     393 

il    Riddel!  v.  ( 1  winnell 

.     385 

d.  Harris  v.  Unwell     . 

.     293 

d.  Reay  v.  Huntingdon 

355.  356 

Doe  d.  Baker  v.  Jones 

d.  Duroure  v.  Jones    , 

d.  Wigan  v.  Jones 

d.  Barrett  v.  Kemp 

d.  Garnons  v.  Knight 

d.  Winder  v.  Lawes    .  .      37 

d.  De  Rutzen  v.  Lewis 

d.  Roylance  v.  Lightfoot    . 

d.  Johnson  v.  Liversedge    . 

d.  Lushington  v.  Bishop  of  Llan 
daff     , 

d.  Roby  v.  Maisey 

d.  Brune  v.  Martyn     . 

d.  Biddulph  v.  Meakin 

d.  Twining  v.  Muscott 

d.  Nepean  v. 

d.  Christmas  v.  Oliver 

d.  Freestone  v.  Parratt 

d.  Lloyd  v.  Passing!) am 

d.  Mansfield  v.  Peach 

d.  Pring  v.  Pearsey     . 

d.  Flower  v.  Peck 

d.  Blight  v.  Pett 

d.  Church  v.  Pontifex 

d.  Biddulph  v.  Poole  . 

d   Starling  v.  Prince  . 

d.  Griffith  v.  Pritchard 

d.  Hayne  and  his  Majesty  v.  Red 
fern     .... 

d.  Pearson  v.  Ries 

d.  Dixon  v.  Roe 

d.  Lumley  v.   Earl   of  Scarbor 
ough   .... 

d.  Foster  v.  Scott 

d.  Strode  v.  Seaton     . 

d.  Blesard  v.  Simpson 

d.  Molesworth  v.  Sleeman  . 

d.  Clarke  v.  Smaridge 

d.  Gutteridge  v.  Sowerby  . 

d.  Shaw  v.  Steward    . 

d.  Rayer  v.  Strickland 

d.  Reed  v.  Taylor 

d.  Lord  Downe  v.  Thompson 

d.  Tofield  v.  Tofield,   . 

d.  Bover  v.  Trueman  . 

d.  Lord  Bradford  v.  Watkins 

d.  Leach  v.  Whittaker 

d.  Gregory  v.  Whichelo    105,  479,  488 

d.  Perry  v.  Wilson 

d.  Daniell  v.  Woodroffe, 
Dolman,  Cox  v. 
Donne  v.  Hart    . 
Dowman's  case . 
Downing  College,  Flack  v. 
Downshire,     Marquis     of,     v.     Lady 

Sandys   . 
Drake,  Souter  v. 
Drybutter  v.  Bartholomew 
Duberley  v.  Day 
Dugdale  v.  Robertson 


INDEX   TO    CASES    CITED. 


XV 


PAGE 

Du  Hourmelin  v.  Sheldon  .         .     165 

Duke,  Sheppard  v.  .  .  .  .  456 
Dumpor's  case  ....  273,  398 
Dungannon,  Lord,  Ker  v.  .  .  .  321 
Dunne  v.  Dunne  ....  32 
Dunraven,  Lord,  v.  Llewellyn  119,  326, 
489,  500,  502,  504,  508,  509,  511 
Dunstan  v.  Tresider  ....  510 
Dyke  v.  Rendall  .         .         .         .236 


I-1. 


Eardley  v.  Granville 

.     354 

Eastland,  Peacock  v. 

56 

Eccles  v.  Cheyne 

.     211 

Eddel's  trust,  re 

.     271 

Eddleston  v.  Collins  . 

.     384 

Eden,  Wilson  v. 

.     403 

Edmonds,  Doe  d.  Curzon  v. 

.     454 

Hill*. 

.     407 

Edwards  v.  Burt 

.     463 

v.  Champion 

59 

Ex  parte 

.     124 

Nanny  v. 

.     428 

Palmer  v.    . 

.     406 

v.  Tuck 

.     321 

Egerton  v.  Massey 

.     282 

Elkins,  Bailey  v. 

81 

Ellison,  Borrows  v.    . 

.     454 

Elwell,  Wainewright  v. 

.     377 

Elwes,  Brudenell  v.    , 

51,  274 

Elworthy,  Tanner  v. 

.     409 

Ely,  Dean  of,  v.  Bliss 

.     457 

Emery,  Cooper  v. 

.      •    .     463 

Ennismore,  Lord,  Phipps  v. 

95 

Evans,  Greenwood  v. 

.     409 

Siggers  v. 

.     217 

Evers,  Challis  v.  Doe  d.     . 

.     275 

Exton  v.  Scott  . 

.      148 

Eylet  v.  Lane  and  Pers 

.     360 

Eyre,  Doe  d.  Blomfield  v.  . 

.     300 

v.  Hanson 

.     428 

Faithful,  Warman  v. 

393 

Farebrother,  Wodehouse  v. 

176 

Farley  v.  Bonham 

236 

Faulkner,  Johnson  v. 

333 

v.  Lowe 

189 

Fenwick,  Gael  v. 

438 

In  the  Goods  of 

208 

Fernandes,  Hemingway  v. 

397 

Ferrers,  case  of  Earl 

8 

Festing  v.  Allen 

271 

Few  v.  Backhouse 

331 

Finch,  Thornton  v.    . 

89 

Fishwick,  Clegg  v.     . 

.     409 

Fitch  v.  Weber . 

Flack  v.  Downing  College 

Flarty  v.  Odium 

Fletcher  v.  Fletcher  . 

Flight  v.  Gray  . 

Floyer,  Attorney-General 

Flyn,  Nash  v.     . 

Foiston  and  Crachroode's 

Follett  v.  Moore 

Forsbrook  v.  Forsbrook 

Forster,  Honeywood  v. 

Fortune,  Baird  v. 

Fox  v.  Bishop  of  Chester 

France,  Cooper  v. 

Franklin,  Clarke  v.    . 

Freeman  v.  Phillips  . 

Frend  v.  Buckley 

Fry  v.  Noble 

Futvoye,  Kennard  v. 


G. 


PAGE 

. 

.     384 

95 

.      148 

.     176 

V. 

286,  311 

.     148 

case 

.     502 

.     434 

.     276 

.     380 

.     329 

.     344 

113,  475 

.      237,  304 

.     510 

.     449 

.      236, 

.     439 

Gael  v.  Fenwick 
Gale,  Griffiths  v. 
Games,  Williams  v.   . 
Gann  v.  The  Freefishers  of  Whitstable 
Garland  v.  Jekyll 
Lester  v. 
v.  Mead 
Garnett,  Riley  v. 
Gatacre,  Doe  d.  Davies  v 
Gatcombe,  Chapman  v. 
Gateward's  case 
Gathercole,  Hawkins  v. 
Gayfere,  Dixon  v. 
Gee,  The  Queen  v.     . 

v.  Smart     . 
Gent,  Davison  v. 
v.  Harrison 
Gerrard,  Grugeon  v. 
Gibbons,  Brackenbury  v. 

v.  Snape 
Gibbs,  Wells  v. 
Gibson,  Thibault  v.  . 
Giddings  v.  Giddings 
Giles,  Doe  d.  Fisher  v. 
Gimson,  Worthington  v. 
Gladwin,  Doe  d.  Muston  v 
Glass,  Murphy  v. 

v.  Richardson 
Glasscock,  Smith  v.  . 
Glover,  Aynsley  v.     . 
Glyn,  Attorney-General  v 
Goddard  v.  Complin 
Goodman,  Cooch  v.   . 
Goodright  d.  Burton  v.  Rigby 
Goold,  M'Carthy  v.    . 

v.  White 
Gordon  v.  Graham-   . 


438 
211 
139 
327 
351 
95 
377 
271 
280 
347 
458 

95 
433 
327 
176 
409 

25 
148 
271 
380 

86 
434 
409 
425 
329 
400 
176 
383 
382 
459 

73 
439 
152 

47 

96 
362 
441 


XVI 


INDEX    TO    CASES    CITED. 


PAGE 

226 
406 
24 
54 
441 
148 


Gordon  v.  Whieldon 

Gostling.  Baker  v 

Gower,  Yellowly  v.    . 
Grafton,  Case  of  Duke  of. 

Graham,  Gordon  v 

v.  Graham 
Grand    Junction    Canal    Company, 
Dimes  v.  .....     379 

Grange,  Hill  v 494 

Grant,  Ex  parte  .         .         .         .21 

v.  Mills 433 

Granville,  Eardley  v.  354 

Graves  v.  Weld  ...        27,  389 

Gray,  Baker  v 442 

Flight  v 176 

Grazebrook,  Rogers  v.  423 

Greaves  v.  Greenwood       .         .         .     110 

v.  Wilson     .         .         .         .435 

Green  v.  James  ....     424 

Miller  v.  333,  395 

Re 404 

Greenfield.  Bonifaut  v.  314 

Greenwood  v.  Evans  .         .         .     409 

Greaves  v.       .         .         .110 

Grey,  Pickersgill  v 382 

Griffith  v.  Blunt         .         .         .         .319 

Wynne  v 302 

Griffiths  v.  Gale         .         .         .         .211 

Grose  v.  West 327 

Grosvenor,  Lord,  v.  Hampstead  Junc- 
tion Railway  Company  ...       13 
Groves,  Doe  d.  Walker  v.  .         .     393 

Grugeon  v.  Gerrard  ....     148 

Gubbins,  Coppinger  v.       .         .         .24 

Guest  v.  Gowbridge  Railway  Com- 
pany       ......       88 

Gurney  v.  Gurney      ....     207 

G-winnell,  Doe  d.  Riddell  v.       .         .     385 
Gyde,  Lingwood  v 370 


Hackett,  Legg  v. 

391 

Hadfield's  case  . 

. 

184 

Hadleston  v.  Whelpdale     . 

409 

Haggerston  v.  Hanbury 

201 

Haigh,  Ex  parte 

433 

Hale  v.  Pew 

276 

Halford  v.  Stains 

321 

Hall  v.  Bainbridge     . 

148 

v.  Byron     . 

324 

489 

v.  Chandless 

149 

Keech  v.     . 

425 

Price  v.      .          .          . 

271 

282 

v.  Waterhouse   . 

225 

Hallett,  Attorney-General  v. 

288 

Hamer,  Dickin  v. 

233 

Hamilton,  Attorney-General  v. 

138 

Hampton  v.  Holman  . 

276 

Hampstead  Junction  Railway  C 

pany,  Lord  Grosvenor  v. 
Hanbury,  Haggerston  v.     . 
Handcock,  Jolly  v. 
Hanson,  Eyre  v. 

v.  Keating  . 
Harcourt,  Ainslie  v.  . 
Harding  v.  Harding  . 

v.  Wilson 
Hardinge,  Thompson  v. 
Hare  v.  Burges  . 
Hargreave,  Scholes  v. 
Harnett  v.  Maitland  . 
Harris  v.  Pugh  . 
Harrison  v.  Blackburn 
Gent  v. 
Norris  v. 
Rooper  v.    . 
Hart,  Donne  v.  . 
Harvey,  Jenkins  v. 
Hasluck  v.  Pedley 
Hatch,  Holford  v. 
Hatchell,  Morgan  v.  . 
Hatfield  v.  Thorp 
Hatton  v.  Haywood    . 
Hawkins,  Dawes  v.     . 

v.  Gathercole    . 
Hay  v.  Earl  of  Coventry    . 

Heald  v. 
Haygarth,  Taylor  v.  . 
Hayward,  Williams  v. 
Haywood,  Hatton  v.  . 
Heald  v.  Hay 
Heelis  v.  Blain  . 
Helps  v.  Hereford 
Heming,  Cherry  v. 
Hemingway  v.  Fernandez 
Hereford,  Helps  v. 
Hertford,   Marquis   of,   Lord    S 

ampton  v. 
Hibbert  v.  Coke 
Hiern  v.  Mill 
Higginson,  Bird  v.     . 
Hill  v.  Edmonds 

v.  Grange    . 

Lacey  v. 

Portland,  Duke  of,  v. 

v.  Saunders 

Stephenson  v.     . 

Woolfv.      . 
HinchclifFe  v.  Earl  of  Kinnoul 
Hives,  Adsetts  v. 
Hoare,  Chetham  v.     . 
Hobson,  Stansfield  v. 
Hodgkin,  Bateman  v. 
Hodgkinson  v.  Wyatt 
Hodgson  and  Wife  v.  Ambrose 
Hogan  v.  Jackson 
Holford  v.  Hatch 
Holland,  Rawley  v.    . 


13 
201 
465 
428 
408 
409 
438 
329 
355 
408 
499 
389 
171 
184 

25 

29 
343 
408 
459 

29 
407 
123 
206 

89 
327 

95 
51,  274 

96 
165 
407 

89 

96 
184 
277 
153 
397 
277 


outh- 


35 


321 

32 

93 

392 

407 

494 

236,  385 

356 

395 

356 

25 

329 

149 

455 

456 

321 

434 

211 

19,  64 

407 

314 


INDEX   TO    CASES    CITED. 


XV11 


Holman,  Hampton   v. 
Holmes,  Poultney  v. 

v.  Prescott  . 
Honeywood  v.  Forster 
Hook  v.  Hook    . 
Hopkins  v.  Hopkins  . 
Hopkioson,  Rolt  v.     . 
Horlock  v.  Smith 
Horn  v.  Horn     . 
Horner  v.  Swann 
Hovenden,  Majoribanks  v 
Howell,  Buckley  v.     . 

Doe  d.  Harris  v. 
Hughes,  Rann  v. 
Hull  and  Selby  Railway,  re 
Hulse,  Andrews  v. 
Humphries  v.  Brogden 
Hunt  v.  Coles     . 
Huntingdon,  Doe  d.  Reaj 
Hurst  v.  Hurst   . 
Hutchinson,  Bearpark  v. 
Hyatt,  Spyer  v.  . 
Hyde  v.  Dallaway 


J. 


PAGE 

.  276 
.  406 
.  271 
.  380 
.   129 

160,  285 
.  441 
32 
.  221 
.  311 
.  297 
.  309 
.  293 
.  148 
.  328 
.  352 
14 
.  171 

355,  356 
.  428 
.  335 
.  385 
.  456 


Iggulden  v.  May 

408 

Ingilby  v.  Amcotts    . 

278 

Ingram,  Buckeridge  v. 

8 

Irving,  Cuthbertson  v. 

424 

Isaac,  re 

21 

Isherwood  v.  Oldknow 

246 

lve's  case  .         .         . 

409 

Jackson,  Hogan  v.     . 

19,  64 

Lane  v. 

88 

Oates  d.  Hatterley  v.  . 

135 

Pitt  v. 

276 

James,  Broughton  v. 

321 

Green  v. 

424 

v.  Plant 

329 

Romilly  v. 

289 

Jee  v.  Audley    .... 

55 

Jeff's  v.  Day        .... 

176 

Jekyll,  Garland  v.      . 

351 

Jenkin  v.  Vivian 

500 

Jenkins  v.  Harvey 

459 

Joberns,  Wilkinson  v. 

139 

John,  Lewis  v.  . 

433 

Johnson,  Bates  v. 

439 

v.  Faulkner 

333 

v.  Johnson 

211 

Shaw  v. 

420 

Johnston,  Salkeld  v. 

457 

Joliti'e,  Rex  v.     . 

459 

Jolly  v.  Hancock 

465 

PAGE 

Jones,  Ashton  v. 

.       73 

v.  Davies 

.     415 

Doe  d.  Baker  v. 

.     400 

Doe  d.  Duroure  v. 

.       65 

Doe  d.  Wigan  v. 

.     303 

v.  Jones  . 

236,  409,  439 

v.  Robin  . 

.     509 

Roe  d.  Perry  v. 

.     277 

v.  Smith 

.     433 

v.  Tripp  . 

.     441 

v.  Williams 

.       86 

Youle  v.  . 

.      190 

Jope  v.  Morshead 

.     368 

Jordan,  Whitbread  v. 

.     433 

Kay  v.  Oxley      .... 

.     329 

Keating,  Hanson  v.    . 

.     408 

Keech  v.  Hall    .... 

.     425 

Kelson,  Watts  v. 

.     329 

Kemp,  Doe  d.  Barrett  v.    . 

.     327 

Kennard  v.  Futvoye  v 

.     439 

Kenworthy  v.  Ward  . 

.      135 

Keppel  v.  Bailey 

.     397 

Ker  v.  Lord  Dungannon     . 

.     321 

Kerr  v.  Pawson 

.     370 

Kilpin,  Wells  v. 

.       89 

King,  The,  v.  Lord  of  the  Manor 

of 

Oundle     . 

.     384 

v.  Lord  Yarborough 

.     328 

King  v.  Smith    .... 

91,  171 

v.  Turner 

.     366 

Vanderplank  v.    / 

.     276 

Kinnoul,  Earl  of,  Hinchcliffe  v. 

.     329 

Kite  and  Queinton's  case  . 

.     375 

Knight,  Doe  d.  Garnons  v. 

.      148 

Knowles,  Stroyan  v. 

14 

Lacey  v.  Hill 

.      236 

385 

Lamb,  Burges  v. 

25 

Lambert,  Carr  v. 

499 

Lampet's  case    . 

277 

Lane  v.  Jackson 

88 

and  Pers,  Eylet  v. 

359 

Thomas  v. 

13 

Langford  v.  Selmes    . 

.      406 

407 

Lansley,  Major  v. 

224 

Law  v.  Urlwin   . 

415 

Lawes,  Doe  d.  Winder  v. 

>     375, 

382 

Leak,  Melling  v. 

389 

Leathes  v.  Leathes    . 

462 

Leeds,  Duke  of,  v.  Earl  Ambers 

t 

25 

Le  Fleming,  Shuttleworth  v. 

458, 

459 

Legg  v.  Hackett 

. 

391 

v.  Strudwiek    . 

391 

XV111 


INDEX    TO    CASES    CITED. 


PAGE 

Leighton,  Carleton  v. 

278 

Leman,  Minet  v. 

325 

Leon,  Rollason  v. 

392 

Lester  v.  Garland 

95 

Lewin  v.  Lewin 

113, 

Lewis,  Doe  d.  De  Rutzen  v. 

400 

v.  John  . 

433 

Liddell,  Barrington  v. 

321 

Lightfoot,  Doe  d.  Roylance  v. 

423 

Menzies  v. 

441 

Lightowler,  Crossley  v.     . 

460 

Lincoln,  Bishop  of,  Bennett  v. 

345 

Walsh  v. 

.     345 

Lingen,  re           ... 

21 

Lingwood  v.  Gyde     . 

.     370 

Lisle,  White  v. 

509 

Littledale,  Att.-Gen.  v. 

287 

Liversedge,  Doe  d.  Johnson  v. 

454 

Llandaff,  Bishop  of,  Doe  d.  Lus 

hing- 

ton  v.      . 

347 

Llewellyn,  Lord  Dunraven  v. 

119,  326, 

489,  500,  502,  504, 5( 

)8,  509,  511 

v.  Rous     . 

29 

Lloyd  v.  Cheetham    . 

96 

Lock  v.  De  Burgh 

29 

Lockyer  v.  Savage     . 

95 

Long  v.  Blackall 

318 

v.  Storie   . 

95 

Lord  v.  The  Commissioners   fo 

r  the 

City  of  Sydney 

327 

Lowe,  Faulkner  v.     . 

189 

Lowndes  v.  Norton    . 

25 

Lucas  v.  Brandreth    . 

19 

v.  Dennison     . 

456 

Lucena  v.  Lucena 

299 

Luck,  Beevor  v. 

442 

Lucy,  Campbell  v. 

207 

Lukin,  Curtis  v. 

321 

Lumley,  Lord  Ward  v. 

149 

Lyon  v.  Reed 

409 

M. 

M'Carthy  v.  Goold     . 
M'Culloch,  Russell  v. 
M'Donnell  v.  Pope 
M'Gregor  v.  M'Gregor 
Machell  v.  Weeding  . 
Mackintosh  v.  Barber 
Mackreth  v.  Symmons 
Maclean,  Bowser  v.    . 
Macpherson,  Brummcll  v. 
Magnay,  Mines  Royal  Societies 
Mainwaring  v.  Baxter 
Maisey,  Doe  d.  Robey  v.     . 
Maitland,  Harnett  v. 
Major  v.  Lansley 
Majoribanks  v.  Ilovenden 
Mandeville's  case 


96 
435 
409 
135 
215 
314 
433 
354 
398 
176 

51 
425 
389 
224 
297 
264 


490 


parte 
ral  v 


Manners  v.  Charlesworth 
Marjoribanks,  Nairn  v. 
Marks  v.  Marks 

Marlborough,  Duchess  of,  Brae 
Marston  v.  Roe  d.  Fox 
Martin  v.  Swannell     . 
Marty n,  Doe  d.  Brune  v 

v.  Williams  . 
Massey,  Egerton  v.    . 
Mathew  v.  Blackrnore 
Matthew  v.  Bowler    . 
Maundrell  v.  Maundrell 
Mawson,  Barnes  v.     . 
May,  Iggulden  v. 
Mead,  Garland  v. 
Meads,  Taylor  v. 
Meakin,  Doe  d.  Biddulph  v 
Melling  v.  Leak 
Mellor  v.  Spateman 
Menzies  v.  Lightfoot 
Merry,  Day  v.    . 
Merryweather,  Saunders  v 
Mestayer  v.  Biggs 
Metcalfe's  trusts,  re 
Meux,  Baggott  v. 
Micklethwait  v.  Micklethwait 
Mid    Kent    Railway,    re,     Ex 

Styan      .... 
Middleton,  Lord,  Attorney-Gene 
Mildmay,  Rex  v. 
Mill,  Hiern  v.     . 
Miller  v.  Green 
Millership  v.  Brookes 
Mills,  Curling  v. 
Grant  v.   . 
Paterson  v. 
v.  Trumper 
Mines  Royal  Societies  v.  Magnay 
Minet  v.  Leman 
Minshull  v.  Oakes 
Mogg  v.  Mogg    . 
Moleyn's,  Sir  John  d 
Mollett,  Tidy  v. 
Monypenny  v.  Dering 
Moore,  Follett  v. 

Pollexfen  v. 

v.  Rawson 

v.  Webster 
Morgan,  Corder  v. 

v.  Hatchell 
Morrell,  Scoones  v. 
Morris,  Bickett  v. 

\.  Morris 
Morse,  Sturgis  v. 
Morshead,  Jope  y. 
Morton,  Smart  v. 
Mostyn    v.   The   West    Mostyn    Coa 

and  Iron  Company,  Limited 
Motley,  Andrew  v 


PAGE 

138 
32 
277 
85, 439 
208 
216 
144 
397 
282 
436 
433 
302 
510 


377 
2'25 

14 
389 
493 
441 

25 
424 
331 

23 
225 

25 


271 
286 
375 

93 
333,  395 
148 
392 
433 
482 

29 
176 
325 
397 
270 

85 
392 
274,  276 
434 
433 
460 
228 
429 
123 
326 
327 

25 
455 
368 

14 


445 

208 


Muggleton  v.  Barnett       102,  469,  472,  473 


INDEX   TO    CASES    CITED. 


XIX 


Murphy  v.  Glass 

Muscott,  Doe  d.  Twining  v. 


N. 


Nairn  v.  Marjoribanks 
Nanny  v.  Edwards  . 
Nash  v.  Flyn 

Watkins  v. 
Nepean  v.  Doe  . 
Newman  v.  Newman . 

v.  Selfe 

New  River  Company,  Davall  v 
N,ewton  v.  Ricketts    . 
Nickells  v.  Atherstone 
Niclosou  v.  Wordsworth 
Nixon,  Scott  v.  . 
Noble,  Fry  v.     . 
Noel  v.  Bewley  . 
Noke's  case 
Norris  v.  Harrison 

Robertson  v.   . 
North,  Potter  v. 
Smyth  v. 
Norton,  Lowndes  v.   . 
Simmons  v.  . 
Norwood,  Crump  d.  Woolley 


0. 

Oakes,  Minshull  v.     . 

Gates  d.  Hatterley  v.  Jackson 

Odium,  Flarty  v. 

Gldknow,  Isherwood  v. 

Oliver,  Doe  d.  Christmas  v. 

Orme's  case 

Oundle,  Lord  of  Manor  of,  The 

v.    . 
Ovington,  Christie  v. 
Owen,  De  Beauvoir  v. 
Oxford,  Earl  of,  Beavan  v. 
Oxley  v.  Kay 


97 


36,  237 


PAGE 
17G 

379 


32 

428 
148 
148 
454 
319 
428 
165 
298 
409 
217 
457 
304 
282 
445 
29 
223 
510 
405 
25 
24 
129 


Kin 


397 
135 

95 
244 

277 
161 

384 
116 
457 
87 
329 


Padget,  Vint  v. 

.     442 

Page,  Wilson  v. 

.     510 

Pain,  Ridout  v. 

7 

Paine's  case 

.     504 

Palmer,  Cadell  v. 

52,  318 

v.  Edwards 

.      406 

Parker  v.  Carter 

.      229 

Colvile  v. 

79 

v.  Dee    . 

.       81 

v.  Taswell 

.      392 

Parmenter  v.  Webber 

.     406 

Parratt,  Doe  d.  Frees 

>tone 

v. 

.     227 

Parsons,  Attorney-General  v. 

Zouch  v. 
Pascoe  v.  Pascoe 
Pass.  Dennett  v. 
Passingham,  Doe  d.  Lloyd 

app.,  Pitty,  resp 
Pate  v.  Brownlow 
Paterson  v.  Mills 
Patrick,  Shedden  v.  . 
Pawson,  Kerr  v. 
Paxton,  Cholmeley  v. 
Payne  v.  Barker 
Peach,  Doe  d.  Mansfield  v 
Peacock  v.  Eastland 
Whitton  v.  . 
Pearce  v.  Cheslyn 
Poarsey,  Doe  d.  Pring  v 
Pearson,  Brooks  v.    . 
Peck,  Doe  d.  Flower  v. 
Pedley,  Hasluck  v.     . 
Pepler,  Taunton  v.     . 
Peppercorn  v.  Wayman 
Perceval  v.  Perceval 
Perrin  v.  Blake 
Perryman's  case 
Pett,  Doe  d.  Blight  v. 
Pettitt,  Stratton  v.     . 
Petty  v.  Styward 
Pew,  Hale  v. 
Pheysey  v.  Vicary     . 

Phillipps,  Freeman  v. 

Phillips,  Acocks  v.    . 
Cousins  v    . 
Duke  of  Beaufort 
v.  Phillips  . 
v.  Smith 

Phipps  v.  Lord  Ennismor 

Pickersgill  v.  Grey    . 

Pidgeley  v.  Rawling. 

Pignet,  Anderson  v.  . 

Pigot's  case 

Pike,  Wilmot  v. 

Pincke,  Shove  v. 

Pitt  v.  Jackson 

Pitty,  resp.,  Passingham,  app 

Plant,  James  v. 

Plummer  v.  Whiteley 

Pocknell,  Buckland  v. 

Pollexfen  v.  Moore     . 

Pollock  v.  Stacy 

Pomfret,  Earl  of,  v.  Lord  Win 

Pontifex,  Doe  d.  Church  v 

Poole  v.  Bentley 

Doe  d.  Biddulph  v.  . 

Pope,  M'Donnell  v.    . 

Portington's,  Mary,  case    . 

Portland,  Duke  of,  v.  Hill 

Potter  v.  North 

Poultney  v.  Holmes  . 

Powell,  Pritchard  v. 


PAGE 

119,  350 
66 
406,  407 
337 
161 
122,  357 
499 
482 
65 
370 
25 
473 
297 
56 
424 
393 
326 
95 
400 
29 
153 
383 
271,  282 
213,  255 
.  357 
.  415 
.  3 'J  2 
.  435 
.  276 
.  329 
.  510 
.  245 
.  249 
86 
.  377 
.   23 
95 
.  382 
23 
238,  420 
.  149 
.  439 
.  201 
.  276 
122,  357 
.  329 
.   29 
.  433 
.  433 
.  406 
dsor  .  389 
.  331 
.  393 
.  409 
.  402 
.   47 
.   356 
.  510 
.   406 
492,  509 


XX 


INDEX   TO    CASES    CITED. 


PAGE 

Powys  v.  Blagrave     . 

24 

Pratt  v.  Colt      . 

169 

Preece  v.  Corrie 

4.06 

Prescott  v.  Barker 

403 

Holmes  v. 

271 

Price,  Curtis  v. 

260 

v.  Hall     . 

271 

282 

v.  Worwood 

400 

Prickett,  Steel  v. 

327 

510 

Prince,  Doe  d.  Starling  v. 

202 

Pritchard,  Doe  d.  Griffith  v. 

68 

v.  Powell 

492, 

509 

Shaw  v.    . 

95 

Procter,  Bacon  v. 

321 

Protheroe,  Damerell  v. 

367, 

492 

Provost  of  Beverley's  case 

258 

Pugh,  Harris  v. 

171 

Pung,  Ray  v. 

303 

Purvis  v.  Rayer 

449 

Q. 


Queen,  The,  v.  Chorley     .         .         .460 
v.  Corbett      .         .         .         .384 
v.  Lady  of  Manor  of  Dalling- 
ham  .     382 

v.  Gee 327 

v.  Wilson  .  .  .  .384 
Queen's  College,  Warrick  v.  324,  459,  489 
Queinton,  case  of  Kite  and        .         .     375 


Rabbits,  Wiltshire  v. 

439 

Randfield  v.  Randfield 

382 

Rami  v.  Hughes          .... 

148 

Rawe  v.  Chichester  .... 

409 

Rawley  v.  Holland     .... 

314 

Rawling,  Pidgeley  v. 

23 

Rawson,  Moore  v. 

460 

Hay  v.  Pung       ..... 

303 

Rayer,  Purvis  v.         .         .         . 

449 

Redfern,    Doe    d.    Hayne    and    His 

Majesty  v.       .... 

127 

Reed,  Lyon  v.    . 

409 

Reeve,  Bennett  v.                               490 

493 

Regina  v.  Lady  of  Manor  of  Dalling- 

ham        ...... 

382 

Rendall,  Dyke  v. 

236 

liex  v.  Joliffe     ..... 

458 

v.  Mildmay,  Dame  Jane  St.  John 

375 

v.  Oundle,  Lord  of  Manor  of 

384 

v.  Lord  Varborough   . 

328 

Reynolds  v.  Wright  .... 

335 

Rhodes,  Barlow  v 

329 

v.  Whitehead 

271 

Richardson,  Cottee  v. 

405 

( ■ lass  v. 

383 

Richardson  Walker  v.  .         .73 

Rickett's  trusts,  re     .         .         .         .     298 

Ricketts,  Newton  v 298 

Riddell  v.  Riddell  .  .  .  .446 
Rider  v.  Wood  ....  130,  473 
Ridout  v.  Pain  .....  7 
Ries,  Doe  d.  Pearson  v.  .     393 

Rigby,  Goodright  d.  Burton  v.  .  .  47 
Right  d.  Taylor  v.  Banks  .  .  .366 
d.  Flower  v.  Darby  .  .  389,  390 
Riley  v.  Garnett  .  .  .  .271 
Rittson  v.  Stordy  ....  165 
Rivis  v.  Watson  .         .         .         .339 

Roach  v.  Wadham     .         .         .         .293 
Robertson,  Dugdale  v.        .         .         .       14 
v.  Norris.  .         .         .223 

Robey,  Trulock  v.      .         .  .     456 

Robin,  Jones  v.  ....     509 

Robinson,  Brandon  v.         .  94,  95,  225 

Buttery  v.  333 

Roe    d.    Earl    of   Berkeley   v.  Arch- 
bishop of  York  .         .     409 
Doe  d.  Dixon  v.  245 
d.  Fox,  Marston  v.     .         .         .     208 
d.  Perry  v.  Jones       .         .         .     277 
Rogers  v.  Grazebrook        .         .         .     423 
v.  Taylor         ....        14 
Rollason  v.  Leon         .                                 392 

Rolph,  Barrett  v 406 

Rolt  v.  Hopkinson  ....  441 
Romilly  v.  James  ....  289 
Rooper  v.  Harrison  ....  343 
Rose  v.  Bartlett  ....     403 

Rosling,  Bond  v 392 

Rosslyn's,  re  Lady,  trust  .  .  .321 
Rous,  Llewellyn  v.  .  .  .  .29 
Rowbotham  v.  Wilson  ...  14 
Rowe,  Calmady  v.  .  .  .  .  32m 
Rowland  v.  Cuthbertson  .  .  .  236 
Rowley  v.  Adams  ....  397 
Appleton  v.  .         .         .         .     228 

Rundall,  Warren  v 24 

Russell  v.  M'Culloch  .         .         .     435 

v.  Russell       ....     433 
Webb  v.  249 


S. 


Sabine,  Bellamy  v.  .  .  .  .93 
St.  Albans,  Duke  of,  v.  Skipwith  .  24 
St.  Sauveur,  Sharp  v.  .  .        66,  165 

Salisbury,  Marquis  of,  Beaumont  v.  .  406 
Salkeld,  Johnston  v.  ...     457 

Sandaman,  Clements  v.      .         .         .98 
Sandys,    Lady,    Marquis    of    Down- 
shire  v.   .  .  .  .  .  .25 

Saunders,  Hill  v 395 

v.  Merriweather         .         .     424 
Savage,  Adams  v 314 


INDEX   TO    CASES    CITED. 


XXI 


PAGE 

Savage,  Lockyer  v.    . 

95 

Saward  v.  Anstey 

333 

Scarborough  v.  Borman     . 

95 

225 

v.  Earl  of,  Doe  d.  L 

im- 

ley  v.       .... 

277 

Scarisbrick  v.  Skelmersdale 

321 

Scholes  v.  Hargreaves 

499 

Scoones  v.  Morrell 

326 

Scott,  Rerrington  v.  . 

54 

Exton  v.  . 

148 

Doe  d.  Foster  v. 

358 

v.  Nixon  .... 

457 

Scratton  v.  Brown 

328 

Seaton,  Doe  d.  Strode  v.   . 

396 

Seaward  v.  Willoek  . 

276 

Sefton,  Earl  of,  Att.-Gen.  v. 

. 

287 

v.  Court    . 

494 

Selfe,  Newman  v. 

428 

Selmes,  Langford  v.  . 

406 

407 

Sewell,  Cole  v.  . 

274 

Sharp  v.  St.  Sauveur 

66, 

165 

Sharpe,  Clay  v.           ... 

429 

Shaw  v.  Johnson 

420 

v.  Pritchard 

95 

Shedden  v.  Patrick    . 

65 

Sheldon,  Du  Ilourmelin  v. 

165 

Shelley's  case    .         .       253,  256 

261 

264 

Sheppard  v.  Duke 

456 

Shove  v.  Pincke 

201 

Shrapnell  v.  Blake     . 

430 

Shum,  Taylor  v. 

397 

Shuttleworth  v.  Le  Fleming 

458 

459 

Sibthorpe,  Attorney-General  v. 

286 

Siggers  v.  Evans 

216 

Simmons  v.  Norton    . 

24 

Simpson,  Doe  d.  Blesard  v. 

361 

v.  Dendy    . 

327 

Sims  v.  Thomas 

171 

Sitwell,  Attorney-General  v.     . 

343 

Skemersdale,  Scarisbrick  v. 

321 

Skipwith,  Duke  of  St.  Albans  v. 

24 

Sleeman,  Doe  d.  Molesworth  v. 

510 

Smaridge,  Doe  d.  Clarke  v. 

392 

Smart,  Gee  v.     . 

176 

v.  Morton 

14 

Smith,  Ackroyd  v.      .         . 

329 

v.  Adams 

385 

v.  Earl  Brownlow  . 

324 

489 

v.  Darby 

14 

v.  Death 

311 

v.  Glasscock  . 

382 

Horlock  v. 

32 

Jones  v. 

433 

King  v.  . 

91 

171 

Phillips  v.       . 

23 

v.  Watts 

407 

Wilcox  v. 

286 

Smyth,  ex  parte 

29 

v.  North 

405 

Smythe,  Attorney-General  v.    . 

286 

PAOB 

Snape,  Gibbons  v 380 

Snow  v.  Booth  ....     455 

Sodor  and  Man,  Bishop  of,  Vincent  v.  297 
Solomon  v.  Solomon  .         .         .     438 

Souter  v.  Drake  ....     441 

Southampton,    Lord    v.    Marquis    of 

Hertford 321 

Sowerby,  Doe  d.  Gutteridge  v.  .         .     376 

Sparke,  Weeks  v 492 

Spateman,  Mellor  v.  .  .  .  490,  493 
Spencer's  case  ....  397,  445 
Spilsbury,  Doe  d.  Burdett  v.      .         .     298 

Spyer  v.  Hyatt 385 

Stables,  Blackburn  v.  270 

Stacy,  Pollock  v 406 

Stafford,  Earl  of,  v.  Buckley  .  .  42 
Stains,  Halford  v.  .         ...     321 

Stansfield  v.  Hobson .  .  .  .  456 
Steel  v.  Prickett  .  .  .  327,  510 
Stephenson,  Cooper  v.  4U6 

v.  Hill  .  .  .  355,  356 
Stewart,  Doe  d.  Shaw  v.  .  .  .  408 
Stordy,  Rittson  v.  165 

Storie,  Long  v.  ....       95 

Stratton  v.  Pettitt  ....  392 
Strickland,  Doe  d.  Raj'er  v.  .  .  373 
v.  Strickland  .  .  .218 
Stroyan  v.  Knowles  ....  14 
Strudwick,  Legg  v.  .  .  .  .  391 
Sturgis  v.  Morse  ....  455 
Styan,  ex  parte  .....  271 
Styward,  Petty  v.  435 

Swann,  Horner  v.  .  •  .  .311 
Swannell,  Martin  v.  .  .  .  .216 
Swansea,    Mayor,    &c.    of,    Duke    of 

Beaufort  v.      ....  328 

Swift  v.  Swift 10 

Sydney,  Commissioners  for  the  city 

of,  Lord  v 327 

Symmons,  Mackreth  v.  4IJ3 

Symonds,  Beale  v.      .         .         .         .     165 


Tabor  v.  Tabor 387 

Taltarum's  case  ....       44 

Tanner,  Chapman  v.  .         .         .         .     433 

v.  Elworthy  ....     409 

Taswell,  Parker  v 392 

Taunton  v.  Pepler      ....     153 

Taylor  v.  Haygarth    ....      165 

Doe  d.  Reed  v.  142 

v.  Meads  ....     2'J."> 

Rogers  v.         .         .         .         .14 

v.  Shunn  ....     397 

v.  Taylor         .         .         .         .27 

Tempest  v.  Tempest  ....     205 

Tetley  v.  Tetley  .    '     .         .         .331 

Thibault  v.  Gibson    ....     434 


xxu 


INDEX    TO    CASES    CITED. 


Thomas  v.  Lane 
Sims  v. 
Thompson,  Betts  v.    . 

resp.,  Busher,  app. 

Doe  d.  Lord  Downe 

Dodds  v. 

v.  Hardinge 
Thorn  v.  Woolcombe 
Thornborough  v.  Baker 
Thornton  v.  Finch 
Thorp,  Hatfield  v. 
Tidy  v.  Mollett  . 
Tierney  v.  Wood 
Tiverton  Market  Act,  in  re 
Tofield,  Doe  d.  Tofield  v 
Tollemache  v.  Tollemache 
Tomlin,  Lord  Bolton  v. 
Tooker  v.  Annesley    . 
Tresider,  Dunstan  v.  . 
Tripp,  Jones  v.  . 
Trower  v.  Butts 
Trueman,  Doe  d.  Bover  v 
Trulock  v.  Robey 
Trumper,  Mills  v. 
Trye.  Lord  Aldborough  v 
Tuck,  Edwards  v. 
Tullett  v.  Armstrong 
Tunstall  v.  Boothby  . 
Turner,  Chadwick  v. 

King  v. 
Tutton  v.  Darke 
Twyne's  case 
Tyrringham's  case 


L'pton  v.  Bassett 

Welcome  v. 
Urch  v.  Walker 
Urlwin,  Law  v.  . 


32 


499,  501 


PAGE 

13 

171 
4,  489 
356 
424 
333 
355 
406 
387 

89 
206 
392 
167 
133 
375 

25 
392 

25 
510 
441 
270 
378 
456 

29 
463 
321 
95,  225 

96 
221 
366 
243 

79 
502 


79 
458 
217 
415 


V. 


Vanderplank  v.  King 

276 

Vaughan,  Viner  v. 

24 

Vicary,  Pheysey  v.    . 

329 

Vickers  v.  Cowell 

435 

Vincent  v    Bishop  of  Sodor  and 

Man 

29? 

Viner  v.  Vaughan     . 

24 

Vint  v.  Fadget  . 

442 

Vivian,  Jenkin  v. 

500 

Vyvyan  v.  Arthur 

307 

w. 


Wadbam,  Roach  v. 
Wadkin,  Barrow  v. 


302 
165 


PAGE 

Wainewright  v.  Elwell       .         .  .     377 

Wakeford,  Wright  v.  ...     297 

Waldo  v.  Waldo         ....       25 

Walker,  Allen  v 176 

v.  Richardson       ...       73 

Urch  v 217 

Walsh  v.  Bishop  of  Lincoln      .         .     345 

Ward,  Berridge  v 327 

Kenworthy  v.  ...     135 

Lord,  v.  Lumley      .         .         .     149 

Warde,  Bristow  v 276 

Wardle  v.  Brocklehurst     .         .         .     329 
Ware  v.  Cann     .  .  .  .  .18 

Warman  v.  Faith  full  .         .         .     393 

Warren  v.  Rundall     .  .  .  .24 

Warrick  v.  Queen's  College     324,  459,  489 

Waterhouse,  Hall  v 225 

Watkins,  Doe  d  Lord  Bradford  v.     .     390 

v.  Nash        .         .         .         .148 

Watson,  Rivis  v.  339 

Watts  v.  Kelson  .  .  .  .329 

Smith  v.  ....     407 

Wayman,  Peppercorn  v.    .         .         .     383 

Webb  v.  Austin  ....     395 

v.  Russell  .  .  .  .249 

Webber,  Parmenter  v.  406 

Weber,  Fitch  v.  ....       65 

Webster,  Moore  v.      .  .  .  .     228 

Weeding,  Machell  v.  ...     215 

Weeks  v.  Sparke        ....     492 

Welcome  v.  Upton     ....     458 

Weld,  Graves  v.  ...        27,  389 

Welden  v.  Bridgewater      .         .         .     499 

Wellesley,  Earl  Cowley  v.  23 

v.  Wellesley      ...       25 

Wells  v.  Gibbs  ....       86 

v.  Kilpin  ....        89 

Wescombe,  Davies  v.  25 

West}  Grose  v 327 

Westbrook  v.  Blythe  .         .         .     404 

West    London    and    Crystal    Palace 

Railway  Company,  Cole  v.     .         .13 
West    Mostyn   Coal   and   Iron    Com- 
pany, Limited,  Mostyn  v.        .         .     445 
Whalley,  Ex  parte      .         .         .         .21 

Wheate,  Burgess  v.    .         .         .        18,  165 

Whelpdale,  Hadleston  v.   .         .         .     409 

Whichelo,  Doe  d.  Gregory  v.  105,  470,   188 
Whieldon,  Gordon  v.  ...     226 

Whisson,  Aveline  v.  .         .         .         .     153 

Whitbread  v.  Jordan  .  .  .     433 

White,  Goold  v.  ....     362 

v.  Lisle  .         .         .         .509 

v.  White         .         .         .         .409 

Whitehead,  Rhodes  v.        .         .         .271 

Whiu-lev,  Plummer  v.        .  .  .29 

Whitfield  v.  Bewit      ....        23 

Whitstable,      The      Freefishers      of, 
Gann  v.  .....     327 

Whittaker,  Doe  d.  Leach  v.       .         .     376 


INDEX   TO    CASES    CITED. 


PAGE 

Whitton  v.  Peacock  . 

424 

Wilcox  v.  Smith 

286 

Wilkinson  v.  Joberns 

i:j.9 

Willan,  Chester  v. 

136 

Williams  v.  Bosanquet 

396 

v.  Games    . 

139 

v.  Hayward 

407 

Jones  v. 

86 

Martyn  v.    . 

397 

Willis  v.  Brown 

195 

Willock,  Seaward  v. 

276 

Willoughby  v.  Willoughby 

418 

Wills  v.  Gattling 

407 

Wilmot  v.  Pike 

439 

Wilson,  Arden  v. 

370 

Beardman  v. 

406 

Doe  d.  Perry  v. 

366 

v.  Eden 

403 

Greaves  v.     . 

435 

Harding  v.     . 

329 

v.  Page 

510 

The  Queen  v. 

384 

Rowbotham  v. 

14 

v.  Wilson 

320 

Wiltshire  v.  Rabbits 

439 

Windsor,  Lord,  Earl  of  Pomfret  v. 

389 

Winter  v.  Lord  Anson 

433 

Wishart  v.  Wylie 

327 

Wodehouse  v.  Farebrother 

176 

Wood  v   Copper  Miners'  Company 

176 

Rider  v 13 

0,  473 

Tierney  v. 

167 

Woodgate,  Bingham  v. 

356 

Woodroffe,  Doe  d.  Daniell  v. 

.     202 

Woolcombe,  Thorn  v. 

.     406 

Woolfe  v.  Hill    . 

25 

Wordsworth,  Nicloson  v.  . 

97,  217 

Worthington  v.  Gimson     . 

.     329 

Worwood,  Price  v.     . 

.       400 

Wright  v.  Barlow 

.      297 

v.  Burroughes 

.      247 

Reynolds  v.    . 

.     335 

v.  Wakeford  . 

.     297 

Wyatt,  Hodgkinson  v. 

.      434 

Wybrants,  Commissioners  of  Chari- 

table Donations  v. 

.     455 

Wylde,  re  . 

.      226 

Wylie,  Wishart  v. 

.     327 

Wynne  v.  Griffith 

.     302 

Yarborough,  Lord,  Rex  v. 

Yates  v.  Aston  ..... 

v.  Boen    ..... 

Bridge  v.  .... 

Yellowly  v.  Gower     .... 
York,  Archbishop  of,  Roe  d.  Earl  of 

Berkeley  v.     . 
Youle  v.  Jones  ..... 


:;2s 
436 


135 

24 


409 
190 


Z. 


Zouch  v.  Parsons 


PRINCIPLES 


LAW   OF   REAL   PROPERTY 


INTRODUCTORY    CHAPTER.. 

OF   THE    CLASSES    OF    PROPERTY. 

In  the  early  ages  of  Europe,  property  was  chiefly  of  a  substantial 
and  visible,  or  what  lawyers  call  a  corporeal,  kind.  Trade  was  little 
practiced, (a)  and  consequently  debts  were  seldom  incurred.  There  were 
no  public  funds,  and  of  course  no  funded  property.  The  public  wealth 
consisted  principally  of  land, (b)  and  the  houses  and  buildings  erected 
upon  it,  of  the  cattle  in  the  fields,  and  the  goods  in  the  houses.  Now 
land,  which  is  immovable  and  indestructible,  is  evidently  a  different  species 
of  property  from  a  cow  or  a  sheep,  which  may  be  stolen,  killed  and  eaten  ; 
or  from  a  chnir  or  a  table,  which  may  be  broken  up  or  burnt.  No  man, 
be  he  ever  so  feloniously  disposed,  can  run  away  with  an  acre  of  land. 
The  owner  may  be  ejected,  but  the  land  remains  where  it  was;  and  he 
who  has  been  wrongfully  turned  out  of  possession,  may  be  reinstated  into 
the  identical  portion  of  land  from  which  he  had  been  removed.  Not  so 
with  movable  property  ;  the  thief  *may  be  discovered  and  pun-  r-^-. 
ished ;  but  if  he  has  made  away  with  the  goods,  no  power  on  earth 
can  restore  them  to  their  owner.  All  he  can  hope  to  obtain  is  a  compen- 
sation in  money,  or  in  some  other  article  of  equal  value. 

Movable  and  immovable(c)  is  then  one  of  the  simplest  and  most  nat- 

(a)  3  Hallam's  Middle  Ages  367-369.  (b)   1  Id.  158. 

(c)   Quandoque  res  mobiles,  ut  cattalla,  ponuntur  in  vadium,  qu.andoque  res  immobiles, 
ut  terrae,  et  tenementa,  et  redditus.     Glanville,  lib.  x.  c.  6.     See  also  lib.  vii.  c.  16,  17. 
1 


2  INTRODUCTORY    CHAPTER. 

ural  divisions  of  property  in  times  of  but  partial  civilization.'  In  our 
law  this  division  has  been  brought  into  great  prominence  by  the  circum- 
stances of  our  early  history. 

By  the  Norman  conquest,  it  is  well  known  a  vast  number  of  Norman 
soldiers  settled  in  this  country.  The  new  settlers  were  encouraged 
by  their  king  and  master ;  and  whilst  the  conquered  Saxons  found 
no  favor  at  court,  they  suffered  a  more  substantial  grievance  in  the  con- 
fiscation of  the  lands  of  such  of  them  as  had  opposed  the  Conqueror. (d)2 
The  lands  thus  confiscated  were  granted  out  by  the  Conqueror  to  his 
followers,  nor  was  their  rapacity  satisfied  till  the  greater  part  of  the  lands 
in  the  kingdom  had  thus  been  disposed  of.(e)  In  these  grants  the  Nor- 
man king  and  his  vassals  followed  the  customs  of  their  own  country, 
or  what  is  called  the  feudal  system. (/)  The  lands  granted  were  not 
given  freely  and  for  nothing ;  but  they  were  given  to  hold  of  the  king, 
subject  to  the  performance  of  certain  military  duties  as  the  condition  of 
their  enjoyment. (g)  The  king  was  still  considered  as  in  some  sense  the 
proprietor,  and  was  called  the  lord  paramount  ;(h)  while  the  services  to 
,-*<,-,  be  rendered  were  ^regarded  as  incident  or  annexed  to  the  owner- 
ship of  the  lands  ;  in  fact,  as  the  rent  to  be  paid  for  it. 

This  feudal  system  of  tenures,  or  holding  of  the  king,  was  soon  after- 
wards applied  to  all  other  lands,  although  they  had  not  been  thus  granted 
out,  but  remained  in  the  hands  of  their  original  Saxon  owners.  How 
this  change  was  effected  is  perhaps  a  matter  of  doubt.  Sir  Martin 
Wright,  (*)  Avho  is  followed  by  Blackstone,(&)  supposes  that  the  introduc- 
tion of  tenures,  as  to  lands  of  the  Saxons,  was  accomplished  at  a  stroke 

(d)  Wright's  Tenures  61,  62  ;  2  Black.  Com.  48. 

(e)  2  Hallam's  Middle  Ages  424.  (/)  Wright's  Tenures  63. 

(g)  1  Hallam's  Middle  Ages  178,  179,  note.  (h)  Coke  upon  Littleton  65  a. 

(i)  Wright's  Tenures  64,  65.  (k)  2  Black.  Com.  49,  50. 

1  Such  was  also  the  distinction  of  the  piled,  all  the  land  in  the  kingdom,  not  pos- 

civilians,  and  it  has  been  preserved  in  this  sessed  by  the  Church,  was  held  by  the  king 

country  in  the  Code  of  Louisiana.     Art.  in  demesne,  or  of  him  directly,  or  of  the 

453,  464.  M.  honors    he    had   seized    and    detained,   as 

-  And  the  repeated  attempts  to  throw  off  feuds,  by  comparatively  few  individuals." 
the  Norman  yoke  during  the  twenty  years  1  Spence's  Eq.  Jurisd.  of  the  Court  of 
which  elapsed  between  the  battle  of  Hast-  Chancery  93  ;  to  which  the  student  may  be 
ings  and  the  completion  of  the  survey  called  referred  as  containing  by  far  the  most  re- 
Doomsday  Book  (1086),  increased  this  con-  condite  and  satisfactory  account  of  the 
fiscation,  until  "  when  Doomsday  was  com-  early  history  of  the  laws  of  England.     R. 


OF    THE    CLASSES    OF    PROPERTY. 


by  a  law(Z)  of  William  the  Conqueror,  by  which  he  required  all  free  men 
to  swear  that  they  would  be  faithful  to  him  as  their  lord.  "  The  terms 
of  this  law,"  says  Sir  Martin  Wright,  "are  absolutely  feudal,  and  are 
apt  and  proper  to  establish  that  policy  with  all  its  consequences."  Mr. 
Hallam,  however,  takes  a  different  view  of  the  subject ;  for  while  he  con- 
siders it  certain  that  the  tenures  of  the  feudal  system  were  thoroughly 
established  in  England  under  the  Conqueror,(»i)  he  yet  remarks  that  by 
the  transaction  in  question  an  oath  of  fidelity  was  required,  as  well  from 
the  great  landowners  themselves  as  from  their  tenants,  "thus  breaking 
in  upon  the  feudal  compact  in  its  most  essential  attribute,  the  exclusive 
dependence  of  the  vassal  upon  his  lord."(w)  The  truth  appears  to  r*^ 
*be  that  Norman  customs,  and  their  upholders  and  interpreters, 
Norman  lawyers,  were  the  real  introducers  of  the  feudal  system  of  tenures 
into  the  law  of  this  country.1     Before  the  conquest  landowners  were  sub- 

(/)  The  52d.  Statuimus  ut  omnes  liberi  homines  foedere  et  sacramento  affirment, 
quod  intra  et  extra  universum  regnum  Anglia:  Wilhelmo  regi  domino  suo  fideles  esse 
volunt ;  terras  et  honores  illius  omni  fidelitate  ubique  servare  cum  eo,  et  contra  inimi- 
cos  et  alienigenas  defendere. 

(m)  2  Hallam's  Middle  Ages  429. 

(n)  2  Hallam's  Middle  Ages  430.  Mr.  Hallam  refers  to  the  Saxon  Chronicle,  which 
gives  the  following  account :  Postea.  sic  itinera  disposuit  ut  pervenerit  in  festo  Primi- 
tiarum  ad  Searebyrig  (Sarum),  ubi  ei  obviam  venerunt  ejus  proceres ;  et  omnes priedia 
tenentes,  quotquot  essent  noise  melioris  per  totam  Angliam,  hujus  viri  servi  fuerunt,  omnes- 
que  se  illi  subdidere,  ejusque  facti  sunt  vassali,  ac  ei  fidelitatis  juramenta  prsestiterunt 
se  contra  alios  quoscunque  illi  fidos  futuros.—  Sax.  Chron.  anno  1086. 


1  See  Stubb's  Constitutional  History  of 
England,  vol.  i.  ch.  ix.,  for  a  very  learned 
view  of  the  effects  of  the  conquest :  "  It  is 
not  to  be  supposed,"  he  says,  "  that  the 
Norman  baron,  when  he  had  received  his 
fief,  proceeded  to  carve  it  out  into  demesne 
and  tenant's  land,  as  if  he  were  making  a 
new  settlement  in  an  uninhabited  country. 
He  might  indeed  build  his  castle  and  en- 
close his  chase  with  very  little  respect  to 
the  rights  of  his  weaker  neighbors,  but  he 
did  not  attempt  any  such  radical  change 
as  the  legal  theory  of  the  creation  of  ma- 
nors seems  to  presume.  The  name  '  manor ' 
is  of  Norman  origin,  but  the  estate  to 
which  it  is  given  existed  in  its  essential 
character,  long  before  the  Conquest;  it 
received  a  new  name,  as  the  shire  also  did, 
but  neither  the  one  nor  the  other  was 
created  by  the  change.  The  local  juris- 
dictions of  the  thegns  who  had  grants  of 


sac  and  soc,  or  who  exercised  judicial 
functions  amongst  their  free  neighbors, 
were  identical  with  the  manorial  jurisdic- 
tions of  the  new  owners.  *  *  *  The  mano- 
rial system  brought  in  a  number  of  new 
names ;  and  perhaps  a  duplication  of  of- 
fices. The  gerefa  of  the  old  thegn,  or  of 
the  ancient  township,  was  replaced,  as 
president  of  the  courts,  by  a  Norman 
steward  or  seneschal ;  and  the  bydel  of 
the  old  system  by  the  bailiff  of  the  new ; 
but  the  gerefa  and  bydel  still  continue  to 
exist  in  a  subordinate  capacity  as  the 
grave  or  reeve  and  the  bedell  ;  and  when 
the  lord's  9teward  takes  his  place  in  the 
county  court,  the  reeve  and  four  men  of 
the  township  are  there  also.  The  common 
of  the  township  may  be  treated  as  the 
lord's  waste,  but  the  townsmen  do  not  lose 
their  customary  share.  The  changes  that 
take  place  in  the  state  have  their  result- 


4  INTRODUCTORY    CHAPTER. 

ject  to  military  duties ;(o)  and  to  a  soldier  it  would  matter  little  whether 
he  fought  by  reason  of  tenure,  or  for  any  other  reason.  The  distinction 
between  his  services  being  annexed  to  his  land,  and  their  being  annexed 
to  the  tenure  of  his  land,  would  not  strike  him  as  very  important.  These 
matters  would  be  left  to  those  whose  business  it  was  to  attend  to  them  ; 
and  the  lawyers  from  Normandy,  without  being  particularly  crafty, 
would,  in  their  fondness  for  their  own  profession,  naturally  adhere  to  the 
precedents  they  were  used  to,  and  observe  the  customs  and  laws  of  their 
own  country.(p)  Perhaps  even  they,  in  the  time  of  the  Conqueror, 
troubled  themselves  but  little  about  the  laws  of  landed  property.  The 
statutes  of  William  are  principally  criminal,  as  are  the  laws  of  all  half- 
civilized  nations.  Life  and  limb  are  of  more  importance  than  property  ; 
and  when  the  former  are  in  danger,  the  security  of  the  latter  is  not  much 
regarded.  When  the  convulsions  of  the  conquest  began  to  subside,  the 
Saxons  felt  the  effects  of  the  Norman  laws,  and  cried  out  for  the  restora- 
tion of  their  own  ;  but  they  were  the  weaker  party,  and  could  not  help 
themselves.  By  this  time  the  industry  of  the  lawyers  had  woven  a  net 
r*r-i  from  which  there  is  no  escaping.^)  But  in  what  precise  *manner 
tenures  crept  in,  was  a  question  perhaps  never  asked  in  those  days  ; 
and  if  asked,  it  could  not  probably,  even  then,  have  been  minutely 
answered.1 

(o)  Sharon  Turner's  Anglo-Saxons,  vol.  ii.  app.  iv.  c.  3,  560;  2  Hallam's  Mid.  Ages 
410. 

(p)  The  Norman  French  was  introduced  by  the  Conqueror  as  the  regular  language 
of  the  Courts  of  law.  See  Hume's  History  of  England,  vol.  ii.  115,  appendix  ii.,  on  the 
Feudal  and  Anglo-Norman  government  and  manners.  A  specimen  of  this  language, 
which  was  often  curiously  intermixed  by  our  lawyers  with  scraps  of  Latin  and  pure 
English,  will  be  given  in  a  future  note. 

(?)  2  Hallam's  Middle  Ages  468. 

ing  analogies  in  every  village,  but  no  new  sidered,  the  principle,  the  form,  and  the 

England  is  created  ;   new  forms  displace  name.    The  last  will  probably  not  be  found 

but  do  not  destroy  the  old,  and  old  rights  in   any  genuine   Anglo-Saxon  record  ;    of 

remain,   although   changed    in    title,    and  the  form,  or  the  peculiar  ceremonies  and 

forced    into   symmetry  with   a   new  legal  incidents  of  a  regular  fief,  there  is  some, 

and  pseudo-historical  theory."    lb.  vol.  i.  but  not  much  appearance.     But  they  who 

p.  273-4.  reflect  upon  the  dependence  in  which  free 

1  "  Whether  the  law  of  feudal  tenures,"  and  even  noble  tenants  held  their  estates 

3  Mr.  Hallam,  "  can  be  said  to  have  ex-  of  other  subjects,  and  upon  the  privilege? 

ed    in    England    before    the    Conquest,  of  territorial  jurisdiction,   will,    1    think, 

must  be  left  to  every  reader's  determina-  perceive  much  of  the  intrinsic  character 

tion.     Perhaps  any   attempt  to   decide  it  of  the   feudal   relation,   though   in   a  less 

positively  would  end  in  a  verbal  dispute,  mature  and  systematic  shape  than  it  as- 

In   tracing   the    history   of  every  political  sumed    after    the    Norman    Conquest."     2 

institution,   three   things   are   to   be  con-  Hallam's  Middle  Ages,  p.  88.                 R. 


OF    THE    CLASSES    OF    PROPERTY.  5 

The  system  of  tenure  could  evidently  only  exist  as  to  lands  and  things 
immovable. (r)  Cattle  and  other  movables  were  things  of  too  perishable 
and  insignificant  a  nature  to  be  subject  to  any  feudal  liabilities,  and 
could  therefore  only  be  bestowed  as  absolute  gifts.  No  duty  or  service 
could  well  be  annexed  as  the  condition  of  their  ownership.  Hence  a 
superiority  became  attached  to  all  immovable  property,  and  the  distinc- 
tion between  it  and  movables  became  clearly  marked;  so  that  whilst 
lands  were  the  subject  of  the  disquisitions  of  lawyers, (s)  the  decisions  of 
the  Courts  of  justice,(f)  and  the  attention  of  the  legislature,^)  movable 
property  passed  almost  unnoticed. (x) 

Lands,  houses,  and  immovable  property, — things  capable  of  being 
held  in  the  way  above  described, — were  called  tenements  or  things  keld.(y) 
They  were  also  denominated  hereditaments,  because,  on  the  death 
of  the  owner,  they  devolve  by  law  to  his  heir.(;s)  So  that  the  phrase, 
lands,  tenements,  and  hereditaments,  was  used  by  the  lawyers  of  those 
times  to  express  all  sorts  of  property  of  the  first  or  immovable  class ; 
and  the  expression  is  in  use  to  the  present  day. 

The  other,  or  movable  class  of  property,  was  known  by  the  name 
of  goods  or   chattels.     The   derivation  of  *the  word  chattel  has    r*o-i 
not  heen  precisely  ascertained. (a)     Both  it  and  the  word  goods  are 
well  known  to  be  still  in  use  as  technical  terms  amongst  lawyers. 

So  great  was  the  influence  of  the  feudal  system,  and  so  important  was 
the  tenure  or  holding  of  lands,  whether  by  the  vassals  of  the  crown,  or 
by  the  vassals  of  those  vassals,  that  for  a  long  time  immovable  property 
was  known  rather  by  the  name  of  tenements  than  by  any  other  term  more 
indicative  of  its  fixed  and  indestructible  nature.(7>)  In  time,  however, 
from  various  causes,  the  feudal  system  began  to  give  way.  The  growth 
of  a  commercial  spirit,  the  rising  power  of  towns,  and  the  formation  of 
an  influential  middle  class,  combined  to  render  the  relation  of  lord  and 

(r)   Co.  Litt.  191  a,  n.  (1),  [I.  2. 

(s)  See  Treatises  of  Glanville,  Bracton,  Britton,  and  Fleta ;  the  Old  Tenures,  and 
the  Old  Natura  Brevium. 

(/)  See  the  Year-Books.  (u)  See  the  Statutes.  (z)  2  Black.  Com.  384. 

(y)  Constitutions  of  Clarendon,  Art.  9;  Glanville,  lib.  ix.  cap.  1,  2,  3  passim; 
Bracton,  lib.  2,  fol.  26  a ;  stats.  20  Hen.  III.  c.  4  ;  13  Edw.  I.  c.  1  ;  Co.  Litt.  1  b ;  Shep. 
Touch.  91. 

(z)  Co.  Litt.  6  a;  Shep.  Touch.  91.  (a)  See  2  Black.  Com.  385. 

(b)  It  is  the  only  word  used  in  the  important  statute  De  Donis,  13  Edw.  I.  c.  1  ;  see 
Co.  Litt.  19  b. 


6  INTRODUCTORY   CHAPTER. 

vassal  anything  but  a  reciprocal  advantage ;  and  at  the  restoration  of 
King  Charles  II.  a  final  blow  was  given  to  the  whole  system. (cf  Its 
form  indeed  remained,  but  its  spirit  was  extinguished.  The  tenures  of 
land  then  became  less  burdensome  to  the  owner,  and  less  troublesome  to 
the  law  student ;  and  the  Courts  of  law,  instead  of  being  occupied  with 
disputes  between  lords  and  tenants,  had  their  attention  more  directed  to 
controversies  between  different  owners.  It  became  then  more  obvious 
that  the  essential  difference  between  lands  and  goods  was  to  be  found  in 
the  remedies  for  the  deprivation  of  either ;  that  land  could  always  be  re- 
stored, but  goods  could  not ;  that,  as  to  the  one,  the  real  land  itself  could 
be  recovered;  but  as  to  the  other,  proceedings  must  be  had  against  the 
person  who  had  taken  them  away.  The  two  great  classes  of  property 
accordingly  began  to  acquire  two  other  names  more  characteristic  of 
their  difference.  The  remedies  for  the  recovery  of  lands  had  long  been 
r^71  called  real  actions,  *and  the  remedies  for  loss  of  goods  personal 
*-  -*  actions. (d)  But  it  was  not  until  the  feudal  system  had  lost  its 
hold,  that  lands  and  tenements  were  called  real  property,  and  goods  and 
chattels  personal  property. [ef 

(c)  By  statute  12  Car.  II.  c.  24. 

(d)  Granville,  lib.  x.  c.  13;  Bracton,  lib.  iii.  fol.  101  b,  par.  1;  102  b,  par.  4;  Brit- 
ton.  1  b;  Fleta,  lib.  i.  c.  1  ;  Litt.  sects.  444,  492;  Co.  Litt.  284  b,  285  a;  3  Black. 
Com.  117. 

(e)  The  terms  lands  and  tenements,  goods  and  chattels,  are  constantly  used  in  Coke 
upon  Littleton  and  Sheppard's  Touchstone,  both  of  them  works  compiled  in  the  early 
part  of  the  17th  century.  The  nearest  approximation  the  writer  can  find  in  either  of 
the  above  books  to  the  now  common  division  into  real  and  personal  is  the  expression 
"  things,  whetber  real,  personal,  or  mixed,"  in  Co.  Litt.  1  b  and  6  a,  and  in  Touchstone, 


i  The  first  eleven  sections  of  this  stat-  The   State  of  Georgia,  5  Peters   1  ;  Wor- 

ute  abolished  tenures  by  knight  service,  cester  v.  The  State  of  Georgia,  6  Id.  515; 

fines  upon  alienation,  primer  seisins,  &c,  Martin   v.  Waddell,    16   Pet.    367,    409,  et 

gave  to  parents  the  custody  of  their  chil-  seq.),  it  may  be  observed  that  the  settle- 

dren  and  the  management  of  their  estates,  ment  of  our  colonies  occurred  about  the 

and  reduced  all   tenures  (except   frankal-  time  of  the  passage  of  the  12  Car.  2  (even 

moigne,  grand  serjeanty  and  copyhold,  as  before  which    the    feudal    system   had  for 

to  which  see  infra,  ch.  5)  to  free  and  com-  most  practical  purposes  been  superseded), 

mon  socage,  by  which  was  meant  in  its  and  by  the   original  charters  of  many  of 

origin    a  tenure  by  any  certain   conven-  them,  such  as  Massachusetts,  Rhode  Island, 

tional    services    not    military.      Wright's  Connecticut,  Pennsylvania,  Maryland,  Yir- 

Tenures    142.     Without   now  considering  ginia,    the    Carolinas,    and    Georgia,    the 

the  question  of  the  nature  of  the  title  to  lands  were  granted  to  be  held  in  free  and 

American  soil,  as  between  the  colonists  and  common  socage,  which   in  them  only  dif- 

the  Indian  tribes  (as  to  which  the  student  fers  from  allodial  tenure  in  recognizing  in 

will  find  the  law  expressed  in   the  well-  theory  the  doctrine  of  fealty.                  R. 

known    cases   of  Johnson   v.  M'lntosh,   8  2  The  same  distinction  is  sometimes  made 

Wheaton   543  ;    The    Cherokee    Nation  v.  with  respect  to  rights      A  real  right  is  de- 


OF   THE    CLASSES    OF    PROPERTY.  < 

It  appears,  then,  that  lands  and  tenements  were  designated,  in  later 
times,  real  property,  more  from  the  nature  of  the  legal  remedy  for  their 
recovery  than  simply  because  they  are  real  things ;  and,  on  the  other 
hand,  goods  and  chattels  were  called  personal  property  because  the 
remedy  for  their  abstraction  was  against  the  person  who  had  taken  them 
away.  Personal  property  has  been  described  as  that  which  may  attend 
the  owner's  person  wherever  he  thinks  proper  to  go,(/)  but  goods  and 
chattels  were  not  usually  called  things  personal  till  they  had  become  too 
numerous  and  important  to  attend  the  persons  of  their  owners. 

The  terms  real  property  and  personal  property  are  now  more  commonly 
used  than  the  old  terms  tenements  and  hereditaments,  goods  and  chattels. 
The  old  terms  were,  indeed,  suited  only  to  the  feudal  times  in  which  they 
originated ;  since  those  times  great  changes  have  taken  place,  commerce 
has  been  widely  extended,  loans  *of  money  at  interest  have  be-  r-*gj 
come  common, (#)  and  the  funds  have  engulfed  an  immense  mass  of 
wealth.  Both  classes  of  property  have  accordingly  been  increased  by 
fresh  additions ;  and  within  the  new  names  of  real  and  personal  many 
kinds  of  property  are  now  included,  to  which  our  forefathers  were  quite 
strangers ;  so  much  so  that  the  simple  division  into  immovable  tenements 
and  movable  chattels  is  lost  in  the  many  exceptions  to  which  time  and 
altered  circumstances  have  given  rise.  Thus,  shares  in  canals  and  rail- 
ways, which  are  sufficiently  immovable,  are  generally  personal  prop- 
erty ;(h)1  funded  property  is  personal ;  whilst  a  dignity  or  title  of  honor, 

p.  91,  an  expression  which  has  an  obvious  reference  to  the  division  of  actions  into  the 
same  three  classes.  In  the  early  part  of  the  last  century,  the  terms  real  and  persona/, 
as  applied  to  property,  were  in  common  use.  See  1'  P.  Wins.  553,  575,  anno  1719; 
Ridout  v.  Pain,  3  Atkyns  486,  anno  1747. 

(/)  2  Black.  Com.  16,  384;  3  Id.  144. 

(g)  Such  loans  were  formerly  considered  unchristian.     Glanville,  lib.  7,  c.  16  ;  lib 
10,  c.  3  ;   1  Reeves's  History  119,  262. 

(h)  [Starling  v.  Parker,  9  Beavan  450;  Walker  v.  Milne,  11  Id.  507  ;  Ashton  v.  Lang- 
dale,  20  Law  J.  Rep.  (N.  S.)  Chy.  234.].  New  River  shares  are  an  exception,  Drybutter 
v.  Bartholomew,  2  P.  Wms.  127  ;  [Davall  v.  New  River  Company,  3  DeG.  &  Sm.  3!)  t]  : 
see  also  Buckeridge  v.  Ingram,  2  Ves.  jun.  652  [approved  in  Earl  of  Portmore  v.  Bunn, 
1  Barn.  &  Ores.  703  (E.  C.  L.  R.  vol.  8)]  ;  Bligh  v.  Brent.  2  You.  &  Coll.  268. 

fined  as  a  right  of  property,  jus  in  re;  the  United  States.  Such  shares  are  frequently 
person  having  which  right  may  sue  for  the  declared  to  be  personalty  by  the  charters 
subject  itself;  while  a  personal  right,  jus  of  incorporation,  but  the  better  opinion  is 
ad  rem,  entitles  the  party  only  to  an  action  that  they  are  so  independently  of  statutory 
for  the  performance  of  the  obligation.  5  enactment,  Angell  &  Ames  on  Corpora- 
Jacob's  Law  Diet.  386.  tions,  \  557,  though  there  are  some  excep- 
1  This  is  also  the  law  generally  in  the  tional  cases  where'they  have  been  held  to 


INTRODUCTORY    CHAPTER. 


which  one  would  think  to  be  as  locomotive  as  its  owner,  is  not  a  chattel 
but  a  tenement.(e)  Canal  and  railway  shares  and  funded  property  are 
made  personal  by  the  different  acts  of  parliament  under  the  authority  of 
which  they  have  originated.  And  titles  of  honor  are  real  property, 
because  in  ancient  times  such  titles  were  annexed  to  the  ownership  of 
various  lands. (k) 

But  the  most  remarkable  exception  to  the  original  rule  occurs  in  the 
case  of  a  lease  of  lands  or  houses  for  a  term  of  years.  The  interest 
which  the  lessee,  or  person  who  has  taken  the  lease,  possesses,  is  not  his 
real,(Z)  but  his  personal  property;  it  is  but  a  chattel, (ra)  though  the 
rent  may  be  only  nominal,  and  the  term  ninety  or  even  a  thousand  years. 
r*q-y  This  seeming  anomaly  is  thus  *explained.  In  the  early  times, 
to  which  we  have  before  referred,  towns  and  cities  were  not  of  any 
very  great  and  general  importance  ;  their  influence  was  local  and  partial, 
and  their  laws  and  customs  were  frequently  peculiar  to  themselves. (n) 

(i)  Co.  Litt.  20  a,  n.  (3)  ;  Earl  Ferrer's  Case,  2  Eden,  Appendix,  p.  373. 
(k)  1  Hallam's  Middle  Ages  158.  (I)  Bracton,  lib.  2,  fol.  27  a,  par.  1. 

(m)  Co.  Litt.  46  a  ;  correct  Lord  Coke's  reference  at  note  (m),  from  ass.  82  to  ass.  28. 
(n)  See  as  a  specimen,  Bac.  Abr.  tit.  Customs  of  London. 


be  realty.  Wells  v.  Cowles,  2  Conn.  567; 
Price  v.  Price's  Heirs,  6  Dana  107.  The 
true  distinction,  upon  which  the  decisions 
have  now  generally  settled,  is,  that  land 
or  other  real  estate  held  by  a  corporation 
is  realty  in  the  hands  of  the  ideal  person, 
but  a  share  of  stock  in  what  is  called  a 
joint-stock  corporation  is  rnenely  a  right 
to  partake  of  the  profits  obtained  from  the 
use  of  the  capital  of  the  corporation  in  the 
manner  and  for  the  purposes  for  which  the 
corporation  is  constituted,  and  therefore 
such  share  is  personalty  without  regard  to 
the  nature  of  the  property  in  which  such 
capital  stock  is  invested.  Angell  &  Ames 
on  Corporations,  \  557  ;  Arnold  v.  Ruggles, 
1  R.  I.  Rep.  165;  2  Kent's  Com.  340  n. 

Besides  these  instances  in  which  the 
character  of  property  as  real  or  personal 
is  in  itself  questionable,  there  are  many 
cases  where  property  plainly  real  in  itself 
becomes  personal  by  force  of  circumstan- 
ces, and  vice  versa.  Thus  a  house  erected 
on  another's  land  by  license  of  the  land 
owner,  is  personalty.  Wells  v.  Banister, 
4  Mass.  514  ;  Doty  v.  Gorhara,  5  Pick.  487  ; 


Ashmuu  v.  Williams,  8  Pick.  402  ;  Aldrich 
v.  Parsons,  6  N.  H.  555  ;  Osgood  v.  How- 
ard, 6  Greenl.  452  ;  Russell  v.  Richards,  1 
Fairf.  429.  So  trees  usually  are  part  of 
the  realty,  but  where  planted  and  culti- 
vated by  a  nurseryman  in  the  course  of  his 
business,  they  become  personalty.  Miller 
v.  Baker,  1  Mete.  27  ;  Whitmarsh  v.  Walker, 
1  Id.  313;  Penton  v.  Robart,  2  East  88; 
Wyndham  v.  Way,  4  Taunt.  316.  And 
crops  of  growing  grain  or  vegetables, 
fructus  industriales,  though  passing  by  a 
conveyance  as  incident  to  the  soil,  have 
been  held  to  be  personalty,  and  as  such 
liable  to  seizure  on  execution.  Stambaugh 
v.  Yeates,  2  Rawle  161  ;  Backenstoss  v. 
Stahler's  Adm.,  33  Penn.  St.  251  ;  Crad- 
dock  v.  Riddlesbarger,  2  Dana  206  ;  Green 
v.  Armstrong,  1  Denio  550.  So,  on  the 
other  hand,  a  very  large  class  of  articles 
having  in  themselves  the  nature  of  person- 
alty, become  realty  by  being  used  in  con- 
nection with  and  thus  becoming  part  of 
the  soil.  See  Judge  Hare's  note  to  Ehves 
v.  Mawe,  2  Smith's  Leading  Cases  245. 

M. 


OF   THE    CLASSES    OF    PROPERTY.  V 

Agriculture  was  then,  though  sufficiently  neglected,  yet  still  of  far  more 
importance  than  commerce,  and  from  the  necessities  of  agriculture 
arose  many  of  our  ancient  rules  of  law.  That  the  most  ancient  leases 
must  have  been  principally  farming  leases,  is  evident  from  the  specimens 
of  which  copies  still  remain,(o)  and  also  from  the  circumstance  that  the 
word  farm  applies  as  well  to  anything  let  on  lease,  or  let  to  farm,  as  to 
a  farm  house  and  the  lands  belonging  to  it.  Thus,  we  hear  of  farmers 
of  tolls  and  taxes,  as  well  as  of  farmers  engaged  in  agriculture.  Farm- 
ing in  those  days  required  but  little  capital,^)  and  farmers  were  re- 
garded more  as  bailiffs  or  servants,  accountable  for  the  profits  of  the 
land  at  an  annual  sum,  than  as  having  any  property  of  their  own.(^) 
If  the  farmer  was  ejected  from  his  land  by  any  other  person  than  his 
landlord,  he  could  not,  by  any  legal  process,  again  obtain  possession  of 
it.1  His  only  remedy  was  an  action  for  damages  against  his  landlord, (V) 
who  was  bound  to  warrant  him  quiet  possession. (s)2     The  farmer  could 

(o)  See  Madox's  Formulare  Anglicanum,  tit.  Demise  for  Years,  in  which  the  great 
majority  of  leases  given  are  farming  leases. 

O)  See  as  to  the  bad  state  of  agriculture,  3  Hallam's  Middle  Ages  365  ;  2  Hume's 
Hist.  Eng.  349. 

(q)  Gilb.  Tenures  39,  40  ;  Watkins  on  Descents  108  (113,  4th  edit.) ;  2  Black.  Com. 
141.  (r)  3  Black.  Com.  157,  158,  200. 

(s)  Bac.  Abr.  tit.  Leases  and  Terms  for  Years,  and  Covenant  (B). 

1  For  although  he  might  bring  ejectione  paying,'  which  were  no  express  covenant 
firmze,  yet  it  will  be  remembered  that  that  in  themselves,  it  was  but  reasonable  they 
action  was,  in  its  origin,  only  one  to  re-  should  make  the  like  construction  for  the 
cover  damages  :  and  it  was  not  until  after  lessee  upon  the  word  '  dimisit,'  which  in 
courts  of  equity  began  to  decree  the  spe-  itself  no  more  imported  an  express  cove- 
cific  restitution  of  the  land,  that  the  mod-  nant  on  his  part;  but  by  making  this 
ern  remedy  sought  by  ejectment  was  ap-  construction  mutual,  they  did  justice  to 
plied.                                                            M.  both,  and  by  the  making  of  it  at  all,  they 

2  It  was  "thought  a  just  construction,"  plainly  showed  their  opinions  of  the  lease 
says  Sir  G.  Gilbert,  to  whom  that  title  in  to  be  no  other  than  a  contract  or  agree- 
Bacon's  Abridgment  has  been  attributed,  ment  between  the  parties,  and  not  such 
"  that  he  who  had  divested  himself  of  the  an  act  as  transferred  any  property  to  the 
profits  of  his  lands  for  a  time  by  giving  lessee  ;  and  this  is  one  reason  why  leases 
them  to  another,  should  be  obliged  to  for  years  are  considered  as  chattels,  and 
maintain  that  gift,  or  be  liable  to  make  go  to  executors." 

satisfaction  if  he  did  not;  and  this  was  Nothing   is   better  settled   than   that  a 

the  more  reasonable,  because   the    lessee  warranty  of  quiet  possession  was  implied 

was  equally  bound  to  answer  and    make  from  the  words  of  leasing,  such  as  demisi, 

good  the  rent  during  the  term  ;   and  if  he  or  the  like.     But  in  modern  times  it  seems 

did   not,    the    law  allowed    the    lessor  to  not  to  have  been  very  firmly  settled  whether 

maintain  an  action  of  covenant  as  well  as  in  the  absence  of  such  words,  as  for  in- 

of  debt  against  him  for  withholding  there-  stance  where  the  lease  is  by  parol,  such  a 

of;  and  as  they  made  this  construction  for  result  is  produced- from  the  mere  relation 

the  lessor  upon  the  words  '  yielding  and  of  landlord   and   tenant.     In  Granger  v. 


9  INTRODUCTORY   CHAPTER. 

therefore  be  scarcely  said  to  be  the  owner  of  the  land,  even  for  the  term 
of  the  lease  ;  for  his  interest  wanted  the  essential  incident  of  real  prop- 
erty, the  capability  of  being  restored  to  its  owner.  Such  an  interest  in 
land  had,  moreover,  nothing  military  or  feudal  in  its  nature,  and  was, 
1**101  *conseoxuen^j5  exempt  from  the  feudal  rule  of  descent  to  the 
eldest  son  as  heir  at  law.  Being  thus  neither  real  property  nor 
feudal  tenement,  it  could  be  no  more  than  a  chattel ;  and  when  leases 
became  longer,  more  valuable,  and  more  frequent,  no  change  was  made ; 
but  to  this  day  the  owner  of  an  estate  for  a  term  of  years  possesses  in 
law  merely  a  chattel.  His  leasehold  estate  is  only  his  personal  prop- 
erty, however  long  may  be  the  term  of  years,  or  however  great  the  value 
of  the  premises  comprised  in  his  lease. (t) 

There  is  now  perhaps  as  much  personal  property  in  the  country  as 
real ;  possibly  there  may  be  more.  Real  property,  however,  still  re- 
tains many  of  its  ancient  laws,  which  invest  it  with  an  interest  and  im- 
portance to  which  personal  property  has  no  claim.  Of  these  ancient 
laws  one  of  the  most  conspicuous  is  the  feudal  rule  of  descent,  under 
which,  as  partially  modified  by  amending  acts,(w)  real  property  goes, 
when  its  owner  dies  intestate,  to  the  heir,  while  personal  property  is  dis- 
tributed, under  the  same  circumstances,  amongst  the  next  of  kin  of  the 
intestate  by  an  administrator  appointed  for  that  purpose  by  the  Court 
of  Probate,  (a;)1 

(t)  Quaere,  however,  whether  Lord  Coke  would  have  agreed  that  a  lease  for  years  is 
personal  property  or  personal  estate,  though  it  is  now  clearly  considered  as  such  ;  and 
see  Swift  v.  Swift,  1  De  Gex,  F.  &  J.  160,  173  ;  Belaney  v.  Belaney,  L.  R.  2  Ch.  Ap.  138. 

(w)  3  &  4  Will.  IV.  c.  106,  amended  by  stat.  22  &  23  Vict.  c.  35,  ss.  19,  20. 

(x)  Etablished  by  stat.  20  &  21  Vict.  c.  77,  amended  by  stat.  21  &  22  Vict.  c.  95. 

Collins,  6  Mees.  &  Wels.  460,  and  Messent  grave,  7  Ohio  394,  in  which  the  operative 

v.    Reynolds,  3    Com.  Bench    194,  it  was  word  was  "  rent."     And  such  would  seem 

held  that  no  such  liability  arose  from  the  to  be  the  law  in  New  York,  notwithstand- 

simple    relation  of  landlord   and    tenant,  ing  the  case  of  Baxter  v.  Ryerss,  13  Barb. 

[These  cases  however  appear  to  have  been  284,  as  in  Mack  v.  Patchin,  42  N.  Y.   174 

overruled  by  Bandy  v.  Cartwright,  8  Exch.  (s.  c.  29  How.  Pr.  20)  the  court  say  "  it  can 

913,  in  which  it  was  held  that  in  a  lease  hardly  be  doubted  at  this  day  that  by  the 

by  parol  at  a  given  rent  there  was  an  irn-  general  assent  of  the  courts  in  this  State, 

plied  warranty  of  quiet  possession,  though  a  covenant  for  quiet  enjoyment  is  implied 

this  decision  has  not  been  fully  acquiesced  in  every  mutual  contract  for  the  leasing 

in.  See  Hall  v.  City  of  London  Brewery  Co.,  and  demise  of  land,  by  whatever  form  of 

2  Best  &  Smith  741  (E.  C.  L.  R.  vol.  110).  words  the  agreement  is  made."           M.] 

It  had   been  previously  decided  in  the  See  generally  Rawle  on  Covenants  for 

same  way  in  Pennsylvania,  Maule  v.  Ash-  Title  479.                                                     R. 

mead,  8    Harris  482,  in  which   the   lease  See  infra,  p.  445. 

was  by  parol ;  and  in  Ohio,  Young  v.  Har-  1  In  the  United  States  also  the  title  to 


OF  THE  CLASSES  OF  PROPERTY.  10 

Besides  the   division   of  property  into   real   and  personal,   there  is 
another  classification  which  deserves  to  be  mentioned,  namely,  that  of 
corporeal  and  incorporeal}    It  is  evident  that  all  property  is  either  of  one 
of  these  classes  or  of  the  other  ;  it  is  either  visible  and  tangible,  or  it  is 
wot.{y)     Thus  a  house  is  corporeal,  but  the  *annual  rent  payable    j-*n-| 
for  its  occupation  is  incorporeal.     So  an  annuity  is  incorporeal ; 
"  for,  though  the  money,  which  is  the  fruit  or  product  of  this  annuity,  is 
doubtless  of  a  corporeal  nature,  yet  the  annuity  itself,  which  produces 
that  money,  is  a  thing  invisible,  has  only  a  mental  existence,  and  cannot 
be  delivered  over  from  hand  to  hand.'»     Corporeal  property,  on  the 
other  hand,  is  capable  of  manual  transfer ;  or,  as  to  such  as  is  immov- 
able, possession  may  actually  be  given  up.     Frequently  the  possession 
of  corporeal  property  necessarily  involves  the   enjoyment  of  certain 
incorporeal  rights  ;  thus  the  lord  of  a  manor,  which  is  corporeal  property, 
may  have  the  advowson  or  perpetual  right  of  presentation  to  the  parish 
church ;  and  this  advowson,  which,  being  a  mere  right  to  present,  is  an 
incorporeal  kind  of  property,  may  be  appendant  or  attached,  as  it  were, 
to  the  manor,  and  constantly  belong  to  every  owner.     But,  in  many 
cases,  property  of  an  incorporeal  nature  exists  apart  from  the  ownership 
of  anything  corporeal,  forming  a  distinct  subject  of  possession ;  and,  as 
such,  it  may  frequently  be  required  to  be  transferred  from  one  person  to 
another.     An  instance  of  this  separate  kind  of  incorporeal  property 
occurs  in  the  case  of  an  advowson  or  right  of  presentation  to  a  church, 
when  not  appendant  to  any  manor.     In  the  transfer  or  conveyance  of 
incorporeal  property,  when  thus  alone  and  self-existent,  formerly  lay  the 
practical  distinction  between  it  and  corporeal  property.     For,  in  ancient 
times,  the  impossibility  of  actually  delivering  up  anything  of  a  separate 
incorporeal  nature  rendered  some  other  means  of  conveyance  necessary. 
The  most  obvious  was  writing ;  which  was  accordingly  always  employed 

(y)  Bract,  lib.  1,  c.  12,  par.  3  ;  lib.  2,  c.  5,  par.  7  ;  Fleta,  lib.  3,  c.  1,  sec.  4. 
(z)   2  Black.  Com.  20. 

real  estate  descends  at  once,  on  the  death  without  issue  goes  to  the  parents  for  life, 

of  the  owner,  to  his  heirs,  while  the  title  and  then  to  his  brothers  and  sisters  in  fee, 

to  personalty  is  prima  facie  in  the  admin-  while  his  personalty  goes  to  the  parents 

istrator  for  purposes  of  distribution.     In  absolutely.     And  in  most  cases  where  the 

general,  however,  the  same  persons  sue-  law  of  descent  gives  a  life  estate  in  realty, 

ceed  to  both  realty  and  personalty,  whether  it  gives  an  absolute  title  to  personalty.    M. 
as  heirs  or  distributees  under  the  intestate         »  The  two  modes    of  classification   are 

acts,   though   in   some   cases   the   estates  entirely  distinct,  as  both  real  and  personal 

given  by  the  law  in  the  different  kinds  of  property  may  be  either  corporeal  or  incor- 

property  are  not  identical,  as  e.  g.  in  Penn-  poreal.  M- 

sylvania  the  real   estate   of  an    intestate 


11  INTRODUCTORY    CHAPTER. 

for  the  purpose,  and  was  considered  indispensable  to  the  separate 
transfer  of  everything  incorporeal  5(a)1  whilst  the  transfer  of  corporeal 
r*-|9i  property,  together  with  such  ^incorporeal  rights  as  its  possession 
involved,  was  long  permitted  to  take  place  without  any  written 
document.  (5)2  Incorporeal  property,  in  our  present  highly  artificial  state 
of  society,  occupies  an  important  position  ;  and  such  kinds  of  incorporeal 
property  as  are  of  a  real  nature  will  hereafter  be  spoken  of  more  at  large. 
But  for  the  present,  let  us  give  our  undivided  attention  to  property  of  a 
corporeal  kind  ;  and,  as  to  this,  the  scope  of  our  work  embraces  one 
branch  only,  namely,  that  which  is  real,  and  which,  as  we  have  seen, 
being  descendible  to  heirs,  is  known  in  law  by  the  name  of  hereditaments. 
Estates  or  interests  in  corporeal  hereditaments,  or  what  is  commonly 
called  landed  property,  will  accordingly  form  our  next  subject  for 
consideration. 

(a)  Co.  Litt.  9  a.  (b)  Id.  48  b,  121  b,  143  a,  271  b,  n.  (1). 

1  And  things  incorporeal  were  there-  who  had  the  latest  deed,  this  passed  the 
fore  said  to  "lie  in  grant,"  while  cor-  title;  for  he  that  had  the  last  deed  had 
poreal  hereditaments  were  said  to  "lie  in  the  first  seisin,  and  therefore  he  was  the 
livery."                                                         R.  feudary,  because  by  the  notoriety  of  the 

2  The  old  common  law  regarded  seisin  as  livery,  coram  paribus,  the  feud  passed, 
the  evidence  of  ownership,  and  no  transfer  Gilbert  on  Tenures  77.  For  the  deed  with- 
of  title  to  land  was  good  until  livery  of  out  the  livery  passed  nothing,  while  the 
seisin  was  made  to  the  alienee.  So  if  the  livery  was  good  and  available  without  any 
owner  of  land  made  two  deeds  of  feoffment  deed.     Litt.  \  66  ;  Co.  Litt.  51  b. 

of  the  same  land,  and  made  livery  to  him 


*PART  I.  [*13] 

OF  CORPOREAL  HEREDITAMENTS. 

Before  proceeding  to  consider  the  estates  which  may  be  held  in 
corporeal  hereditaments  or  landed  property,  it  is  desirable  that  the 
legal  terms  made  use  of  to  designate  such  property  should  be  under- 
stood ;  for  the  nomenclature  of  the  law  differs  in  some  respects  from 
that  which  is  ordinarily  employed.  Thus  a  house  is  by  lawyers  gen- 
erally called  a  messuage;  and  the  term  messuage  was  formerly  con- 
sidered as  of  more  extensive  import  than  the  word  house. (a)  But  such 
a  distinction  is  not  now  to  be  relied  on. (b)  Both  the  term  messuage  and 
house  will  comprise  adjoining  outbuildings,  the  orchard,  and  curtilage,  or 
court  yard,  and,  according  to  the  better  opinion,  these  terms  will  include 
the  garden  also.(c)  The  word  tenement  is  often  used  in  law,  as  in  ordi- 
nary language,  to  signify  a  house :  it  is  indeed  the  regular  synonym 
which  follows  the  term  messuage;  a  house  being  usually  described  in 
deeds  as  "all  that  messuage  or  tenement."  But  the  more  comprehen- 
sive meaning  of  the  word  tenement,  to  which  we  have  before  adverted, (d) 
is  still  attached  to  it  in  legal  interpretation,  whenever  the  sense  re- 
quires.^) Again,  *the  word  land  comprehends  in  law  any  r*-ijn 
ground,  soil,  or  earth  whatsoever ;(/)  but  its  strict  and  primary 
import  is  arable  land.^)  It  will,  however,  include  castles,  houses,  and 
outbuildings  of  all  kinds ;  for  the  ownership  of  land  carries  with  it  every 
thing  both  above  and  below  the  surface,1  the  maxim  being  cujus  est  solum, 

(a)  Thomas  v.  Lane,  3  Cha.  Ca.  26  ;   Keihv.  57. 

(b)  Doe  d.  Clements  v.  Collins,  2  T.  Rep.  489,  502  ;  1  Jarman  on  Wills  709,  1st  ed.  ; 
666,  2d  ed. ;  740,  3d  ed. 

(c)  Shep.  Touch.  94;  Co.  Litt.  5  b,  n.  (1);  Smithson  v.  Cage,  Cro.  Jac.  526;  Lord 
Grosvenor  v.  Hampstead  Junction  Railway  Company.  1  De  Gex  &  Jones  446  ;  Cole  v. 
Wist  London  and  Crystal  Palace  Railway  Company,  27  Beav.  242. 

(</)  Ante,  p.  5.  (e)  2  Black.  Com.  16,  17,  59. 

(/)  Co.  Litt.  4  a;  Shep.  Touch.  92;  2  Black.  Com.  17;  Cooke,  dem.  4  Bing.  90  (E. 
C.  L.  R.  vol.  13).  [g)  Shep.  Touch  92. 


1  Except  mines  of  gold  and  silver,  which  best  suits;  as  common  and  trivial  things 

by  royal  prerogative  from  time  immemorial  to   the   common   people;    things  of  more 

have  belonged  to  the  Crown,  1  Inst.  4  a;  2  worth  to  persons  of  a  higher  and  superior 

Id.  572  ;  Case  of  mines,  Plowd.  313.     For  class,  and  things  most  excellent  to  persons 

"the    common    law,"    it   was    there    said,  who   excel   all  others;   and  because   gold 

"which   is  founded   upon   reason,  appro-  and   silver  are  the  most  excellent   things 

priates  everything  to  the  persons  whom  it  which    the    soil    contains,    the    law    has 


14 


OF    CORPOREAL   HEREDITAMENTS. 


ejus  est  usque  ad  caelum.  A  pond  of  water  is  accordingly  described  as 
land  covered  with  water  ;(h)  and  a  grant  of  land  includes  all  mines  and 
minerals  under  the  surface.(z')  This  extensive  signification  of  the  word 
land  may,  however,  be  controlled  by  the  context;  as  where  land  is 
spoken  of  in  plain  contradistinction  to  houses,  it  will  not  be  held  to  com- 
prise them.(&)  So  mines  lying  under  a  piece  of  land  may  be  excepted 
out  of  a  conveyance  of  such  land,  and  they  will  then  remain  the  corporeal 
property  of  the  grantor,  with  such  incidental  powers  as  are  necessary  to 
work  them,(Z)  and  subject  to  the  incidental  duty  of  leaving  a  sufficient 
support  to  the  surface  to  keep  it  securely  at  its  ancient  and  natural 
level. (m)     In  the  same  manner,  chambers  may  be  the  subjects  of  con- 

(h)  Co.  Litt.  4  b.  (i)  2  Black.  Com.  18. 

(k)  1  Jarman  on  Wills  707,  1st  ed. ;  664,  2d  ed. ;  738,  3d  ed. 
(I)  Earl  of  Cardigan  v.  Armitage,  2  Barn.  &  Cress.  197,  211  (E.  C.  L.  R.  vol.  9). 
(to)  Humphries  v.  Brogden,  12  Q.  B.  739  (E.  C.  L.  R.  vol.  64)  ;  Smart  v.  Morton,  5  E. 
&  B.  30  (E.  C.  L.  R.  vol.  85) ;  Rogers  v.  Taylor,  2  H.  &  N.  828  ;  Rowbotham  v.  Wilson, 


appointed  them,  as  in  reason  it  ought,  to 
the  person  most  excellent,  and  that  is  the 
king."  So  far  was  this  prerogative  carried 
that  it  was  held  in  that  case  by  a  majority 
of  the  twelve  judges,  that  if  any  admixture 
of  the  precious  metals  were  found  in  mines 
of  copper,  lead,  or  the  like,  the  whole  be- 
longed to  the  king,  because  the  noble  metal 
attracted  to  it  the  less  valuable,  and  as 
the  king  could  not  hold  jointly  with  a  sub- 
ject, he  therefore  took  the  whole  ;  a  doc- 
trine corrected  by  the  act  of  1  W.  &  M.  c. 
30,  and  5  W.  &  M.  c.  6.  But  in  most  of  the 
royal  charters  to  the  colonies,  "  all  mines  " 
were  expressly  included,  with  a  reserva- 
tion in  some  of  them  of  a  fifth  or  a  fourth 
of  all  gold  and  silver  ore.  R. 

The  rights  of  the  owners  of  mines  and 
mineral  lauds  in  the  United  States  are  gov- 
erned substantially  by  the  rules  of  the 
common  law,  but  the  subject  of  gold  and 
silver,  or  "  royal "  mines,  has  received  very 
little  attention  until  recently,  when  the 
extensive  working  of  such  mines  by  private 
parties  on  the  public  lands  of  California 
and  the  western  territories  has  given  rise 
to  much  litigation  and  many  difficult  ques- 
tions in  connection  with  Spanish  and  Mex- 
ican law.  It  is  now  held,  however,  that 
the  right  to  such  mines  on  the  public  lands 
within  the  State  of  California  is  vested  in 
the  United  States  merely  as  incident  to  the 


ownership  of  the  soil,  and  not  by  virtue  of 
any  prerogative  as  sovereign,  and  therefore 
subject,  as  in  the  case  of  a  private  citizen, 
to  such  laws  and  regulations  as  the  State 
may  prescribe.  Boggs  v.  Merced  Company, 
14  Cal.  375,  376;  Moore  v.  Smaw,  17  Id. 
199;  Fremont  v.  Fowler,  Id.  226.  The 
State  has  encouraged  the  development  of 
the  mines  by  general  statutes  protecting 
the  rights  of  actual  miners,  and  the  policy 
of  not  asserting  the  claims  of  the  United 
States  has  been  acquiesced  in  by  Congress. 
The  rights  acquired  by  actual  settlers  and 
miners  have  been  treated  as  estates  in  all 
controversies  among  themselves,  and  held 
good  against  every  one  but  the  State  or 
the  United  States,  but  liable  to  be  defeated 
by  the  latter  at  any  time  by  the  enforce- 
ment of  their  title  as  owners  of  the  soil. 
Gore  v.  McBrayer,  18  Cal.  588 ;  Table  Mt. 
Co.  v.  Stranahan,  20  Id.  207;  1  Am.  Law 
Reg.  466 ;  Hess  v.  Winder  et  al.,  30  Cal. 
349. 

The  State  of  Pennsylvania  still  exerts  its 
prerogative  by  a  reservation  in  its  patents 
of  land  of  one-fifth  of  all  gold  or  silver  ore 
(post,  109  n.) ;  and  the  State  of  New  York 
by  a  general  statute  has  asserted  its  rights 
over  such  mines,  as  sovereign,  to  the  ex- 
tent of  the  English  rules.  3  Kent's  Com. 
378,  note,  q.  v.  M. 


OF    CORPOREAL    HEREDITAMENTS. 


14 


veyance  as  corporeal  property,  independently  of  the  floors  above  or  below 
them.(w)1  The  word  premises  is  frequently  used  in  laAv  in  its  proper 
etymological  sense  of  that  which  has  been  before  mentioned. (p)  Thus, 
after   a    recital    of    various    facts    in    a    deed,    it    frequently    proceeds 


:"in  consideration  of  the  premises"  meaning  in  consideration 


[*15] 


of  the  facts  before  mentioned ;  and  property  is  seldom  spoken  of 
as  premises,  unless  a  description  of  it  is  contained  in  some  prior  part  of 
the  deed.  Most  of  the  words  used  in  the  description  of  property  have 
however  no  special  technical  meaning,  but  are  construed  according  to 
their  usual  sense  ;(p)  and,  as  to  such  words  as  have  a  technical  import 
more  comprehensive  than  their  ordinary  meaning,  it  is  very  seldom  that 
such  extensive  import  is  alone  relied  on  ;  but  the  meaning  of  the  parties 
is  generally  explained  by  the  additional  use  of  ordinary  words.2 

8  E.  &  B.  123  (E.  C.  L.  R.  vol.  92)  ;  affirmed  8  H.  of  L.  Cas.  348  ;  Bonomi  v.  Backhouse, 
E.  B.  &  E.  622  (E.  C.  L.  R.  vol.  96) ;  affirmed  9  H.  of  L.  Cas.  503 ;  Dugdale  v.  Robertson, 
3  Kay  &  J.  695  ;  Stroyan  v.  Knowles,  6  H.  &  N.  454 ;  Smith  v.  Darby,  L.  R.  7  Q.  B.  716. 

(n)  Co.  Litt.  48  b  ;  Shep.  Touch.  206.     See  12  Q.  B.  757  (E.  C.  L.  R.  vol.  64). 

(o)  Doe  d.  Biddulph  v.  Meakin,  1  East  456 ;  1  Jarman  on  Wills  707,  1st  ed. ;  665,  2d 
ed. ;  739,  3d  ed. 

(p)  As  farm,  meadow,  pasture,  &c. ;   Shep.  Touch.  93,  94. 

1  The  student  will  find  an  interesting 
article  by  Prof.  Miller  on  the  divisions  of 
land  by  horizontal  surfaces,  in  1  Am.  Law 
Reg.  N.  S.  577.  M. 

2  It  is  a  question  which  frequently  oc- 
curs, and  is  sometimes  not  easy  to  answer, 
whether  chattels,  such  as  machinery, when 
placed  in  or  fastened  to  a  house,  become 
part  of  the  realty  or  not.  The  old  test 
used  to  be  the  nature  of  the  physical  at- 
tachment— upon  the  maxim  "  quicquid 
plantatur  solo,  solo  cedit" — but  there  were 
exceptions  in  favor  of  trade  fixtures  at  an 
early  date.  The  modern  doctrine  is  that 
physical  attachment  is  not  the  true  test, 
but  the  intention  of  the  party  who  affixed 
the  chattel.  Meig's  Appeal,  12  P.  F.  Smith 
28 ;  Quimby  v.  Manhattan  Co.,  9  C.  E. 
Green  260.  Of  this  intention  the  charac- 
ter of  the  attachment  may  be  important 
evidence,  but  it  is  not  conclusive.  Capen 
v.  Peckharu,  35  Conn.  94 ;  Voorhees  v. 
McGinnis,  48  N.  Y.  282 ;  Woodman  v. 
Pease,  17  N.  H.  284.  Perhaps  the  circum- 
stance most  relied  on  is  the  nature  of 
the  estate  or  interest  which  the  party  who 
fixed  the  chattel  had  in  the  land :  as  it 
would  be  against  common  experience  to 


believe  that  one  who  had  but  a  short  term 
in  which  to  enjoy  the  land,  would  perma- 
nently improve  it  at  his  own  cost,  for  the 
benefit  of  another.  Consequently  the  law, 
in  determining  whether  a  fixture  is  part 
of  the  realty,  leans  most  strongly  in  favor 
of  tenants  for  short  terms  of  years,  Hey  v. 
Brunner,  11  P.  F.  Smith  87;  Davis  v.  Buf- 
fum,  51  Maine  162;  while  it  is  generally 
safe  to  conclude  that  an  owner  meant,  by 
the  addition,  to  improve  his  own  property 
permanently.  Buckley  v.  Buckley,  11  Barb. 
43.  But  where  a  tenant  for  years  has  fix- 
tures upon  the  demised  property,  he  must 
remove  them  before  the  expiration  of  his 
term.  White  v.  Arndt,  1  Whart.  91  ;  Bliss 
v.  Whitney,  9  Allen  114.  There  are  other 
circumstances  viewed  by  the  courts  as 
furnishing  evidence  more  or  less  persua- 
sive on  the  question  of  intention,  such  as 
the  usage  of  the  community;  the  necessity 
or  adaptability  of  the  fixture  to  the  use  of 
the  realty,  or  the  relations  of  the  parties 
between  whom  the  question  arises.  Hill 
v.  Sewald,  3  P.  F.  Sm.  273  ;  Jarechi  v. 
Philharmonic  Society,  29  Id.  403  ;  Chris- 
tian v.  Dripps,  4  Casey  271. 


[*16]  CHAPTER   I. 

OF   AN    ESTATE    FOR    LIFE. 

It  seldom  happens  that  any  subject  is  brought  frequently  to  a  person's 
notice,  without  his  forming  concerning  it  opinions  of  some  kind.  And 
such  opinions  carelessly  picked  up  are  often  carefully  retained,  though 
in  many  cases  wrong,  and  in  most  inadequate.  The  subject  of  property 
is  so  generally  interesting,  that  few  persons  are  without  some  notions  as 
to  the  legal  rights  appertaining  to  its  possession.  These  notions,  how- 
ever, as  entertained  by  unprofessional  persons,  are  mostly  of  a  wrong 
kind.  They  consider  that  what  is  a  man's  own  is  what  he  may  do  what 
he  likes  with  ;  and  with  this  broad  principle  they  generally  set  out  on 
such  legal  adventures  as  may  happen  to  lie  before  them.  They  begin  at 
a  point  at  which  the  lawyer  stops,  or  at  which  indeed  the  law  has  not  yet 
arrived,  nor  ever  will ;  but  to  which  it  is  still  continually  approximating. 
Now  the  student  of  law  must  forget  for  a  time  that,  if  he  has  land,  he 
may  let  it,  or  leave  it  by  his  will,  or  mortgage  it,  or  sell  it,  or  settle  it. 
He  must  humble  himself  to  believe  that  he  knows  as  yet  nothing  about 
it;  and  he  will  find  that  the  attainment  of  the  ample  power,  which  is 
now  possessed  over  real  property,  has  been  the  work  of  a  long  period  of 
time;  and  that  even  now  a  common  purchase  deed  of  a  piece  of  freehold 
land  cannot  be  explained  without  going  back  to  the  reign  of  Henry 
r*iT-i  VIII. j(a)1  or  an  ordinary  settlement  of  land  without  recourse  to 
*the  laws  of  Edward  I.(b)  That  such  should  be  the  case  is  cer- 
tainly a  matter  of  regret.  History  and  antiquities  are,  no  doubt,  inte- 
resting and  delightful  studies  in  their  place  ;  but  their  perpetual  intrusion 
into  modern  practice,  and  the  absolute  necessity  of  some  acquaintance 
with  them,  give  rise  to  much  of  the  difficulty  experienced  in  the  study 
of  the  law,  and  to  many  of  the  errors  of  its  less  studious  practitioners. 

The  first  thing  then  the  student  has  to  do  is  to  get  rid  of  the  idea  of 
absolute  ownership.     Such  an  idea  is  quite  unknown  to  the  English  law. 

(a)  Stat.  27  Hen.  VIII.  c.  10,  the  Statute  of  Use?. 

(6)  Stat.  13  Edw.  I.  c.  1,  De  Dotris  Conditionalibus,  to  which  estates  tail   owe  their 
origin. 

1  As  is  explained  post,  Ch.  IX. 


OF    AN    ESTATE    FOR    LIFE. 


17 


No  man  is  in  law  the  absolute  owner  of  lands.     He  can   only  hold  an 
estate  in  them.1 

The  most  interesting,  and  perhaps  the  most  ancient  of  estates,  is  an 
estate  for  life;  and  with  this  we  shall  begin.  Soon  after  the  commence- 
ment of  the  feudal  system,  to  which,  as  we  have  seen,  our  laws  of  real 
property  owe  so  much  of  their  character,  an  estate  for  life  seems  to  have 
been  the  smallest  estate  in  conquered  lands  which  the  military  tenant 
was  disposed  to  accept.(c)  This  estate  was  inalienable,  unless  his  lord's 
consent  could  be  obtained. (d)  A  grant  of  lands  to  A.  B.  was  then  a 
grant  to  him  as  long  as  he  could  hold  them,  that  is,  during  his  life,  and 
no  longer  :(e)  for  feudal  donations  were  not  extended  beyond  the  precise 
terms  of  the  gift  by  any  presumed  intent,  but  were  taken  strictly ;(/) 
and,  on  the  tenant's  death,  *the  lands  reverted  to  the  lord  or  pjg-i 
grantor.     If  it  was  intended  that  the  descendants  of  the  tenant 

(c)  Watk.  Descents  107  (113,  4th  ed.)  ;  1  Hallam's  Middle  Ages  160.  There  seems 
no  good  reason  to  suppose  that  feuds  were  at  any  time  held  at  will,  as  stated  by  Black- 
stone  (2  Black.  Com.  55)  and  by  Butler  (Co.  Litt.  191  a,  n.  (1),  vi.  4).2 

(d)  Wright's  Tenures  29  ;   2  Black.  Com.  57. 

(e)  Bracton,  lib.  2,  fol.  92  b,  par.  6. 

(/)  Wright's  Tenures  17,  152.  Blackstone's  reason  for  the  estate  being  for  life — 
that  it  shall  be  construed  to  be  as  large  an  estate  as  the  words  of  the  donation  will 
bear  (2  Black.  Com.  121) — is  quite  at  variance  with  this  rule  of  construction.3 


1  Called  in  Latin  status,  as  signifying 
the  condition  or  circumstances  in  which 
the  owner  stands  with  regard  to  his  prop- 
erty. R- 

2  It  has,  however,  been  long  a  favorite 
opinion  of  text  writers,  that  fees  were  ori- 
ginally held  at  the  will  of  the  lord,  "  and 
rose  by  degrees,  through  the  stages  of 
leases  for  years  and  for  life,  to  the  dignity 
of  inheritances."  Such  is  the  opinion 
stated  in  the  Book  of  Feuds  (Lib.  1,  tit.  1), 
and  adopted  by  Wright,  Spelman,  Cruise, 
Blackstone,  Montesquieu,  and  others.  The 
more  correct  opinion  seems  to  be  that 
stated  in  the  text,  as  is  well  shown  by 
Mr.  Hallam,  in  the  quotation  referred  to 
by  the  author,  and  Mr.  Spence  observes, 
"  No  doubt  the  Anglo-Saxon  lords,  equally 
as  those  on  the  Continent,  like  the  Roman 
patrons,  in  some  cases  granted  benefices 
revocable  at  pleasure,  or  for  a  term  short 
of  the  life  of  the  beneficiary,  or  for  his 

2 


life  merely,  but  nothing  is  to  be  found  in 
any  early  documents  to  show  that  the  con- 
tinental sovereigns,  as  well  as  their  Anglo- 
Saxon  brethren,  did  not,  from  the  very 
first,  make  grants  of  transmissible  or  here- 
ditary benefices  ;  graduations  of  preference 
and  regard  towards  particular  persons  must 
have  existed  at  all  times,  and  must  have 
equally  influenced  lords  of  every  degree." 
1  Eq.  Jur.  of  the  Court  of  Chancery  46.  R. 
3  Blackstone's  reason  obviously  pro- 
ceeds upon  the  idea  that  fees  were  origi- 
nally merely  granted  at  will,  and  it  be- 
came necessary,  therefore,  to  invoke  the 
principle,  verba  cartarum  fortius  accipiuntur 
contra  proferentem  (one  inapplicable  in  this 
relation,  as  deeds  were  originally  never 
employed  in  the  transfer  of  corporeal  here- 
ditaments), in  order  to  account  for  the  re- 
sult that  a  grant  to  A.  B.  was  a  grant  for 
life.  The  more  simple  reason  is  however 
cited  in  the  preceding  note.  R. 


18  OF    CORPOREAL    HEREDITAMENTS. 

should,  at  his  decease,  succeed  him  in  the  tenancy,  this  intention  was 
expressed  by  additional  words  of  grant ;  the  gift  being  then  to  the  tenant 
and  his  heirs,  or  with  other  words  expressive  of  the  intention.  The  heir 
was  thus  a  nominee  in  the  original  grant;  he  took  everything  from  the 
grantor,  nothing  from  his  ancestor.  So  that,  in  such  a  case,  "  the  ances- 
tor and  the  heirs  took  equally  as  a  succession  of  usufructuaries,  each  of 
whom  during  his  life  enjoyed  the  beneficial,  but  none  of  whom  possessed, 
or  could  lawfully  dispose  of,  the  direct  or  absolute  dominion  of  the  prop- 
erty."^) The  feudal  system,  however,  had  not  long  been  introduced 
into  this  country  before  the  restriction  on  alienation  began  to  be  re- 
laxed.(A)  Subsequently,  by  a  statute  of  Edward  I., {if  the  right  of  every 
freeman  to  sell  at  his  own  pleasure  his  lands  or  tenements,  or  part 
thereof,  was  expressly  recognized;  at  a  still  later  period  the  power  of 
testamentary  alienation  was  bestowed,(&)  until,  at  the  present  day,  the 
right  to  dispose  of  property  is  not  only  established,  but  has  become 
inseparable  from  its  possession. (I)  Moreover,  the  old  feudal  rule  of  strict 
construction  has  long  since  given  way  to  the  contrary  maxim,  that  every 
grant  is  to  be  construed  most  strongly  against  the  grantor.(w)  Yet  so 
r*  deeply  rooted  are  the  *feudal  principles  of  our  law  of  real  prop- 

*-  erty,  that,  in  the  case  before  us,  the  ancient  interpretation  re- 

mains unaltered  ;2  and  a  grant  to  A.  B.  simply  now  confers  but  an  estate 

(g)  Co.  Litt.  191  a,  n.  (1),  vi.  5  ;  Burgess  v.  Wheate,  1  Wm.  Black.  133. 

(h)  Leg.  Hen.  I.  70  ;  1  Reeves's  Hist.  Eng.  Law  43,  44  ;  Co.  Litt.  191  a,  n.  (1),  vi.  6. 

(i)  Stat.  18  Edw.  I.  c.  1. 

(k)  By  stat.  32  Hen.  VIII.  c.  1,  as  to  estates  in  fee  simple,  and  by  stat.  29  Car.  II. 
c.  3,  s.  12,  as  to  estates  held  for  the  life  of  another  person.  See  1  Jarm.  on  Wills  54, 
1st  ed. ;  49,  2d  ed. ;  55,  3d  ed. 

(I)  Litt.  sect.  360  ;  Co.  Litt.  223  a;  Ware  v.  Cann,  10  Barn.  &  Cress.  433  (E.  C.  L.  R. 
vol.  21). 

(m)  Shep.  Touch.  88. 


1  The  well-known  statute  of  Quia  Emp-  course  of  many  hundred  years,  the  statutes 
tores,  which  abolished  subinfeudation,  and  which  are  said  to  have  effected  these 
declared  that  "from  henceforth  it  shall  be  changes  have  been  little  more  than  decla- 
lawful  to  every  freeman  to  sell  of  his  own  ratory.  In  a  recent  able  little  volume, 
pleasure  his  lands  and  tenements,  or  part  "The  Theory  of  the  Common  Law,"  the 
of  them,  so  that  the  feoffee  shall  hold  the  author  correctly  remarks,  "  The  Normans 
same  lands  or  tenements  of  the  chief  lord  and  their  descendants  have  adhered  faith- 
of  the  same  fee,  by  such  service  and  cus-  fully  to  their  customs  in  relation  to  lands, 
toms  as  his  feoffor  held  before."           R.  which   they  adopted  in  the  middle  ages. 

2  Although  the  attention  of  the  student  Their  law  of  Real  Estate  is  altogether 
is  often  directed  in  text-books  to  "  the  customary.  No  code  nor  statute  estab- 
changes  in  the  common  law  of  England,"  lishes  our  system  of  real  estate.  Yet  in 
yet,  it  is  curious  to  observe  that,  in  the  the  lapse  of  nine  hundred  years,  diversified 


1Q 

OF   AN    ESTATE   FOR   LIFE.  LX> 


for  his  lifeinY  which  estate,  though  he  may  part  with  it  if  he  pleases, 
will  terminate  at  his  death,  into  whosesoever  hands  it  may  have  come 

The  most  remarkable  effect  of  this  antiquated  rule  has  been  its  fre- 
quent defeat  of  the  intentions  of  unlearned  testators,(<0  who,  in  leaving 
Lr  lands  and  houses  to  the  objects  of  their  bounty,  were  seldom  aware 
that  they  were  conferring  only  a  life  interest;  though  if  they  extended 
the  gift  to  the  heirs  of  the  parties,  or  happened  to  make  use  of  the  word 
estate,  or  some  other  such  technical  term,  their  gift  or  devise  included 
the  whole  extent  of  the  interest  they  had  power  to  dispose  of.  Gene- 
rally speaking,"  says  Lord  Mansfield,(p)  "no  common  person  has  the 
smallest  idea  of  any  difference  between  giving  a  horse  and  a  quantity  of 
land.  Common  sense  alone  would  never  teach  a  man  the  difference; 
but  the  distinction,  which  is  now  clearly  established,  is  this  :-If  the 
words  of  the  testator  denote  only  a  description  of  the  specific  estate  or 
land  devised,  in  that  case,  if  no  words  of  limitation  are  added,  the  devisee 
has  only  an  estate  for  life.  But  if  the  words  denote  the  quantum of 
interest  or  property  that  the  testator  has  in  the  lands  devised,  then  the 
whole  extent  of  such  his  interest  passes  by  the  gift  to  the  devisee.     Ihe 

(„)  Litt.  sect.  283  ;  Co.  Litt.  42  a ;  2  Black.  Com.  121 ;  Lucas  v.  Brandreth,  28  Beav. 

2H{o)  2  Jarman  on  Wills  170,  1st  ed. ;   219,  2d  ed. ;   247,  3d  ed.,  and  the  cases  there 

cited. 

(p)  In  Hogan  v.  Jackson,  Cowp.  306. 


by  every  incident  that  can  befall  a  people,  whole    realm.     The    Habeas    Corpus    Act 
L    PoLeroUS    or   adverse   fortune,-ad-  gave  another  remedy  for  illegal  impriBon- 
vancTngTom  comparative   barbarism  to  ment.     Nor  has  the  legislate  altered m 
the  hefght  of  eivilLion,-changing  dy-  a  single  particular,  conveyances  at  corn- 
nasties  -pendulating  from  the  tyranny  of  mon  law,  but  has  increased  indirectly  their 
"eTudors  t         e   a°narchy  of  the   Bare-  number.     So  the  family  relates  remain 
bones  Parliament,  indoctissimum  genus  in-  with  their  incident^  as  they  were  in    he 
1IL1.  tmJLmr-™*  one  principle  earliest  periods."     Walker's  Theory  of  the 
of  the  law  of  real  estate  has  been  altered.  Common  Law,  p.  10.  *. 
Th    Just  nian  of  the  English  law  restored         i  This  rule  has  been  altered  in  many  of 
A ens  cm  ry  law  by  the'statute  Be  Bonis,  the  United  States,  such  as  New  York,  Vir- 
and  the  Tyranilical  Henry  the  Eighth  at-  ginia,  Georgia,  Kentucky,  Alabama,  Mis- 
"   P  ed  teflon  off  that  foreign  graft  in  the  sissippi,    Missouri,    Arkansas     Mary  and 
common  law  uses.     Legislation,  with  few  Illinois,   Iowa    Tenn  --,  and  Tex^  s    by 
exception,   has  been  confined  to  the  acci-     statutes  which,    in   effect,   dispense  wittt 
dental   and  has  not  touched  the  essentials  words  of  inheritance,  by  providing  that 
'common  law.     Thus,  the  Statute  of    unless  the  contrary  intent  should  appear, 
«Zy   establishes    the   kind   of    or  be  implied  in  the  deed   everj ; convey 
evidence  necessary  to  prove  contracts  in     ance    shall    pass   all    the    estate   of  ^the 
certain  cases.     The   Statute  of  Wills   ex-     grantor, 
tends  the   special   customary  law  to  the 


19  OF    CORPOREAL    HEREDITAMENTS. 

question,  therefore,  is  always  a  question  of  construction,  upon  the  words 
and  terms  used  by  the  testator."  Such  questions,  as  may  be  imagined, 
have  been  sufficiently  numerous.  Happily,  by  the  act  of  parliament  for 
r*901  *ne  amenclment  °f  the  laws  *with  respect  to  wills, (q)  a  construction 
more  accordant  with  the  plain  intention  of  testators  is  now  given 
in  such  cases.1 

If  the  owner  of  an  estate  for  his  own  life  should  dispose  thereof,  the 
new  owner  will  become  entitled  to  an  estate  for  the  life  of  the  former. 
This,  in  the  Norman  French,  with  which  our  law  still  abounds,  is  called 
an  estate  pur  autre  vie  ;(r)  and  the  person  for  whose  life  the  land  is 
holden  is  called  the  cestui  que  vie.  In  this  case,  as  well  as  in  that  of  an 
original  grant,  the  new  owner  was  formerly  entitled  only  so  long  as  he 
lived  to  enjoy  the  property,  unless  the  grant  were  expressly  extended  to 
his  heirs  ;  so  that,  in  case  of  the  decease  of  the  new  owner,  in  the  lifetime 
of  the  cestui  que  vie,  the  land  was  left  without  an  occupant  so  long  as 
the  life  of  the  latter  continued,  for  the  law  would  not  allow  him  to 
re-enter  after  having  parted  with  his  life  estate.(s)  No  person  having 
therefore  a  right  to  the  property,  anybody  might  enter  on  the  land  ;  and 
he  that  first  entered  might  lawfully  retain  possession  so  long  as  the  cestui 
que  vie  lived. (t)  The  person  who  had  so  entered  was  called  a  general 
occupant.  If,  however,  the  estate  had  been  granted  to  a  man  and  his 
heirs  during  the  life  of  the  cestui  que  vie,  the  heir  might,  and  still  may, 
enter  and  hold  possession,  and  in  such  a  case  he  is  called  in  law  a  special 
occupant,  having  a  special  right  of  occupation  by  the  terms  of  the 
grant. (u)  To  remedy  the  evil  occasioned  by  property  remaining  without 
an  owner,  it  was  provided  by  a  clause  in  a  famous  statute  passed  in  the 
r*9i-i  reign  °f  King  Charles  II., (v)  that  *the  owner  of  an  estate  pur 
autre  vie  might  dispose  thereof  by  his  will ;  that  if  no  such  dispo- 
sition should  be  made,  the  heir,  as  occupant,  should  be  charged  with  the 

(q)  7  Will.  IV.  &  1  Vict.  c.  26,  s.  28.  (r)  Litt.  sect.  56. 

(s)  In  very  early  times  the  law  was  otherwise.     Bract,  lib.  ii.  c.  9,  fol.  27  a;  lib.  iv. 
tr.  3,  c.  9,  par.  iv.  fol.  263  a  ;  Fleta,  lib.  iii.  c.  12,  s.  6  ;  lib.  v.  c.  5,  s.  15. 

(()  Co.  Litt.  41  b  ;  2  Black.  Com.  258.  («)  Atkinson  v.  Baker,  4  T.  Rep.  229. 

(v)  The  Statute  of  Frauds,  29  Car.  II.  c.  3,  s.  12. 

1  In  the  States  mentioned  in  the  previous  the  testator's  entire  interest,  unless  there 

note,  and  also  in  Maine,  New  Hampshire,  is   an   intention  to  limit  a  smaller  estate. 

Vermont,  Massachusetts,  New  Jersey,  Penn-  The  Virginia  statute  was   passed   so   long 

Sylvania,  the  Carolinas,  Ohio,  Indiana,  and  ago    as    1785,  and    is    believed    to   be   the 

Michigan,  and  perhaps    others,   it  is   pro-  pioneer    act.     Guthrie   v.  Guthrie,  1    Call 

vided  by  statute  that  a  devise  shall  pass  12.                                                              M. 


OF   AN    ESTATE    FOR   LIFE. 


21 


debts  of  his  ancestors ;  or,  in  case  there  should  be  no  special  occupant, 
it  should  go  to  his  executors  or  administrators1  and  be  subject  to  the 
payment  of  his  debts,  of  course  only  during  the  residue  of  the  life  of  the 
cestui  que  vie.  In  the  construction  of  this  enactment  a  question  arose, 
whether  or  not,  supposing  the  owner  of  an  estate  pur  autre  vie  died 
without  a  will,  the  administrator  was  to  be  entitled  for  his  own  benefit, 
after  paying  the  debts  of  the  deceased.  An  explanatory  act  was  accord- 
ingly passed  in  the  reign  of  King  George  U.,(x)  by  which  the  surplus, 
after  payment  of  debts,  was,  in  case  of  intestacy,  made  distributable 
amongst  the  next  of  kin,  in  the  same  manner  as  personal  estate.2  By 
the  statute  for  the  amendment  of  the  laws  with  respect  to  wills,(#)  the 
above  enactments  were  both  replaced  by  more  comprehensive  provisions 

to  the  same  effect.3 

When  one  person  has  an  estate  for  the  life  of  another,  it  is  evidently 
his  interest  that  the  cestui  que  vie,  or  he  for  whose  life  the  estate  is 

(x)  Stat.  14  Geo.  II.  c.  20,  s.  9  ;  see  Co.  Litt.  41  b,  n.  (5). 
{y)  Stat.  7  Will.  IV.  &  1  Vict.  c.  26,  ss.  3,  6. 


i  By  the  common  law  there  could  be  no 
general  occupancy  of  incorporeal  heredita- 
ments, inasmuch  as  they  lay  in  grant,  and 
were  not  capable  of  actual  possession  (Co. 
Litt.  41  b),  and  until  the  year  1830,  it 
seems  to  have  been  considered  doubtful 
whether  the  statute  of  Charles  did  not 
apply  only  to  estates  pur  autre  vie  of  which 
there  could  be  no  occupancy  at  common 
law.  It  was  admitted  that,  for  the  reason 
just  cited,  there  could  be  no  general  occu- 
pancy of  a  rent-charge,  nor  in  strictness  a 
special  occupancy,  yet  it  was  held  in  Bear- 
park  v.  Hutchinson,  7  Bing.  178,  that  as 
the  statute  was  remedial,  it  was  the  sound- 
est construction  to  include  not  only  such 
estates  pur  autre  vie  as  were  in  strictness, 
but  also  such  as  in  common  parlance  were 
considered  to  be  the  subject  of  special 
occupancy.  "■■ 

2  The  provisions  of  these  statutes  have 
been  adopted  in  many  of  the  United  States, 
such  as  New  York,  New  Jersey,  [Pennsyl- 
vania], Virginia,  North  Carolina,  Indiana, 
Kentucky  ;  and  in  most,  if  not  all  of  them, 
estates  pur  autre  vie  are  regarded  as  the 
real  estate  of  a  decedent,  and  are  equally 
liable  to  the  payment  of  his  debts.       R. 


3  The  third  section  of  this  act  authorized 
a  testator  to  dispose  of  an  estate  pur  autre 
vie  "  whether  there  shall  or  shall  not  be  any 
special  occupant  thereof;"  and  its  sixth 
section  provided  that  if  no  disposition  by 
will  should  be  made  of  any  estate  pur  autre 
vie  of  a  freehold  nature,  the  same  should 
be  chargeable  in  the  hands  of  the  heir,  if 
it  should  come  to  him  by  reason  of  special 
occupancy,  as  assets  by  descent,  as  in  the 
case  of  freehold  land  in  fee  simple  ;  and  in 
case  there  should  be  no  special  occupant 
of  any  estate  pur  autre  vie,  whether  freehold 
or  customary  freehold,  tenant  right,  cus- 
tomary or  copyhold,  or"  of  any  other  tenure, 
and  whether  a  corporeal  or  incorporeal 
hereditament,  it  should  go  to  the  executor 
or  administrator  of  the  party  that  had  the 
estate  thereof  by  virtue  of  the  grant ;  and 
if  the  same  should  come  to  the  executor  or 
administrator  either  by  virtue  of  a  special 
occupancy  or  of  the  statute  in  question,  it 
should  be  assets  in  his  hands,  and  should 
go  and  be  applied  and  distributed  in  the 
same  manner  as  the  personal  estate  of  the 
testator  or  intestate.  R- 


21  OF    CORPOREAL    HEREDITAMENTS. 

holden,  should  live  as  long  as  possible ;  and,  in  the  event  of  his  decease, 
a  temptation  might  occur  to  a  fraudulent  owner  to  conceal  his  death. 
In  order  to  prevent  any  such  fraud,  it  is  provided,  by  an  act  of  parlia- 
ment passed  in  the  reign  of  Queen  Anne,(2)  that  any  person  having  any 
claim  in  remainder,  reversion,  or  expectancy,  may,  upon  affidavit  that  he 
hath  cause  to  believe  that  the  cestui  que  vie  is  dead,  or  that  his  death  is 
concealed,  obtain  an  order  from  the  Lord  Chancellor  for  the  production 
r*29i  °f  tne  *  cestui  que  vie  in  the  method  prescribed  by  the  act ;  and, 
if  such  order  be  not  complied  with,  then  the  cestui  que  vie  shall 
be  taken  to  be  dead,  and  any  person  claiming  any  interest  in  remainder,  or 
reversion  or  otherwise,  may  enter  accordingly.  The  act,  moreover,  pro- 
vides,^) that  any  person  having  any  estate  pur  autre  vie,  who,  after  the 
determination  of  such  estate,  shall  continue  in  possession  of  any  lands, 
without  the  express  consent  of  the  persons  next  entitled,  shall  be 
adjudged  a  trespasser,  and  may  be  proceeded  against  accordingly. 

The  owner  of  an  estate  for  life  is  called  a  tenant  for  life,  for  he  is 
only  a  holder  of  the  lands  according  to  the  feudal  principles  of  our  law. 
A  tenant,  either  for  his  own  life,  or  for  the  life  of  another  (pur  autre  vie), 
hath  an  estate  of  freehold,  and  he  that  hath  a  less  estate  cannot  have  a 
freehold. (b)  Here,  again,  the  reason  is  feudal.  A  life  estate  is  such  as 
was  considered  worthy  the  acceptance  of  a  free  man  ;  a  less  estate  was 
not.(c)1  And  it  is  worthy  of  remark,  that  in  the  earlier  periods  of  our 
law  an  estate  for  a  man's  own  life  was  the  only  life  estate  considered  of 
sufficient  importance  to  be  an  estate  of  freehold  :  an  estate  for  the  life 
of  another  person  was  not  then  reckoned  of  equal  rank. (d)  But  this 
distinction  has  long  since  disappeared;  and  there  are  now  some  estates 
which  may  not  even  last  a  lifetime,  but  are  yet  considered  in  law  as  life 

(z)  Stat.  6  Anne,  c.  18.     See  Ex  parte  Grant,  6  Ves.  512  ;  Ex  parte  Whalley,  4  Russ. 
561 ;  Re  Isaac,  4  Myl.  &  Craig  18  ;   Re  Lingen,  12  Sim.  104. 

(a)  Stat.  6  Anne  c.  18,  s.  5.  (6)  Litt.  s.  57. 

(c)  Watk.  Desc.  108  (113,  4th  ed.)  ;    2  Black.  Com.  104. 

(d)  Bract,  lib.  2,  c.  9,  fol.  26  b  ;  lib.  4,  tr.  3,  c.  9,  par.  3,  fol.  263  a;  Fleta,  lib.  3,  c. 
12,  s.  6;  lib.  5,  c.  5,  s.  15. 


1  A  freeholder,  as  such,  had  rights  and  the  shire."     1  Cruise  Real  Prop.  *61.    The 

privileges  beyond  the  mere  enjoyment  of  distinction  between  estates  of  freehold  and 

the  land— he  was  "  a  member  of  the  county  estates  less  than  freehold  was,  in  ancient 

court;  one  of  the  pares  curise  in  the  court  times,  most  visibly  marked.     In  a  feudal 

baron  or  lord's  court;  was  entitled  to  be  government,  resting  upon  land  tenure,  the 

summoned  on  juries  in  the  king's  court,  holder  of  land  was  a  person  of  some  import- 

and  to  vote  at  the  election  of  a  knight  of  ance. 


OF    AN    ESTATE    FOR    LIFE. 


22 


estates,  and  are  estates  of  freehold.1  Thus,  an  estate  granted  to  a  woman 
during  her  widowhood  is  in  law  a  life  estate,  though  determinable  on  her 
marrying  again. (e)  Every  life  estate  also  may  be  determined  by  the 
civil  death  of  the  party,  as  well  as  by  his  natural  death  ;  for  which  reason 
*in  conveyances  the  grant  is  usually  made  for  the  term  of  a  r*23~| 
man's  natural  life.(/)  Formerly  a  person,  by  entering  a  monas- 
tery, and  being  professed  in  religion,  became  dead  in  law.(#)  But  this 
doctrine  is  now  inapplicable ;  for  there  is  no  longer  any  legal  establish- 
ment for  professed  persons  in  England,(A)  and  our  law  never  took  notice 
of  foreign  professions.^')  Civil  death  may,  however,  occur  by  out- 
lawry.(y)  It  was  formerly  occasioned  also  by  attainder  for  treason  or 
felony ;  but  all  attainders  are  now  abolished.(fc) 

Every  tenant  for  life,  unless  restrained  by  covenant  or  agreement,  has 
the  common  right  of  all  tenants  to  cut  wood  for  fuel  to  burn  in  the  house, 
for  the  making  and  repairing  of  all  instruments  of  husbandry,  and  for 
repairing  the  house,  and  the  hedges  and  fences,(Z)  and  also  the  right  to 
cut  underwood  and  lop  pollards  in  due  course.(wi)  But  he  is  not  allowed 
to  cut  timber2  or  to  commit  any  other  kind  of  ivaste ;(n)  either  by  volun- 

(e)  Co.  Litt.  42  a;  2  Black.  Com.  121. 

(/)  Co.  Litt.  132  a;  2  Black.  Com.  121.  (.<?)  1  Black.  Com.  132. 

(h)  Co.  Litt.  3  b,  n.  (7),  132  b,  n.  (1) ;  1  Black.  Com.  132  ;  stat.  31  Geo.  III.  c.  32, 
s.  17;  10  Geo.  IV.  c.  7,  ss.  28-37;  2  &  3  Will.  IV.  c.  115,  s.  4.  See  also  Anstey's  Guide 
to  the  Laws  affecting  Roman  Catholics,  pp.  24-27  ;  23  &  24  Vict.  c.  134,  s.  7  ;  Re  Met- 
calfe's Trusts,  2  De  Gex,  Jones  &  Smith  122. 

(*)  Co.  Litt.  132  b. 

(/)  4  Black.  Com.  319,  380  ;  Watk.  n.  123  to  Gilb.  Ten. 

(k)  By  Stat.  33  &  34  Vict.  c.  23. 

(I)  Co.  Litt.  41  b  ;  2  Black.  Com.  35,  122. 

(m)  Phillips  v.  Smith,  14  M.  &  W.  589.  As  to  thinnings  of  young  timber,  see  Pidge- 
ley  v.  Rawling,  2  Coll.  275 ;  Bagot  v.  Bagot,  32  Beav.  509,  518 ;  Earl  Cowley  v.  Welles- 
ley,  M.  R.,  Law  Rep.,  1  Eq.  656;  35  Beavan  635. 

(n)  Co.  Litt.  53  a;  Whitfield  v.  Bewit,  2  P.  Wms.  241  ;  2  Black.  Com.  122,  281;  3 
Black.  Com.  224. 


1  Because  they  will  last  a  lifetime  if  not  is  not  therefore  waste  in  ordinary  cases, 
determined  by  the  contingency  specified,  and  it  has  been  generally  held  that  a  ten- 
and  the  law  will  not  presume  the  happen-  ant  for  life  of  wild  land  may  cut  down 
ing  of  such  contingency.                         M.  timber   for  the   purpose   of  clearing   and 

2  While  the  principles  of  the  law  of  cultivating  a  reasonable  portion  of  the 
waste  are  the  same  in  the  United  States  as  land,  regard  being  had  to  the  location  and 
in  England,  yet  the  application  of  them  is  condition  of  the  whole  farm,  the  value  of 
accommodated  to  the  peculiar  circumstan-  the  timber,  and  the  course  of  good  hus- 
ces  and  condition  of  land  in  this  country,  bandry.  What  is  waste  in  such  cases  is  a 
The  change  of  arable  land  to  meadow,  &c,  question  for  the  jury,  to  be  determined  by 


23 


OF    CORPOREAL    HEREDITAMENTS. 


tary  destruction  of  any  part  of  the  premises,  which  is  called  voluntary 
waste,1  or  by  permitting  the  buildings  to  go  to  ruin,  which  is  called  per- 
missive waste. (o)  Of  late,  however,  doubts  have  been  thrown  on  the 
r*c>A-\  liability  of  a  *tenant  for  life  for  waste  which  is  merely  permis- 
sive ;  and  the  Courts  of  Equity  have  refused  to  interfere  in  the 
case  of  a  tenant  for  life  whose  estate  is  equitable  only.(^)  But  there 
appears  to  be  no  sufficient  ground  for  doubting  the  tenant's  liability 
where  he  has  the  legal  estate  vested  in  himself.  (</)  So  a  tenant  for  life 
cannot  plough  up  ancient  meadow  land  ;(r)2  and  he  is  not  allowed  to  dig 
for  gravel,  brick,  or  stone,  except  in  such  pits  as  were  open  and  usually 
dug  when  he  came  in  ;{s)  nor  can  he  open  new  mines  for  coal  or  other 

(o)  Co.  Litt.  58  a. 

(p)  Powys  v.  Blagrave,  4  De  Gex,  M.  &  G.  448,  458  ;  Warren  v.  Rudall,  I  John.  & 
Hem.  1. 

(?)  Yellowly  v.  Gower,  11  Ex.  274,  293. 

(/•)  Simmons  v.  Norton,  7  Bing.  648,  20.  See  Duke  of  St.  Albans  v.  Skipwith,  8 
Beav.  354. 

(s)  Co.  Litt.  53  b  ;  Viner  v.  Vaughan,  2  Beav.  466. 


the  usage  and  practice  of  the  country. 
But  such  tenant  may  not  cut  down  all  the 
timber,  or  so  much  of  it  as  will  perma- 
nently damage  the  inheritance.  More- 
house v.  Cotheal,  2  Zab.  521  ;  Keeler  v. 
Eastman,  11  Vt.  293;  MeCullough  v.  Ir- 
vine's Exrs.,  1  Harris  438  ;  Jackson  el  al. 
v.  Brownson,  7  Johns.  227  ;  Ward  v.  Shep- 
pard,  2  Hayw.  283 ;  Woodward  v.  Gates, 
38  Ga.  212  ;  Drown  v.  Smith,  52  Me.  141  ; 
McCay  v.  Wait,  51  Barb.  141.  He  may 
sell  the  timber  to  repay  himself  the  ex- 
pense of  clearing,  but  if  valuable  trees  be 
cut  for  sale,  and  not  for  the  purpose  of 
cultivating  the  land,  it  is  waste.  Davis  v. 
Gilliam,  5  Iredell  Eq.  308,  311.  But  where 
dower  land  was  juniper  swamp,  out  of 
which  the  only  profit  was  from  the  sale  of 
timber  for  staves,  &c,  it  was  held  that  the 
widow  might  cut  and  sell  such  timber  ac- 
cording to  the  ordinary  use  made  of  such 
land  in  that  part  of  the  country.  Ballen- 
tine  v.  Poyner,  2  Hayw.  110;  Proffit  v. 
Henderson,  29  Mo.  325. 

Where  a  tenant  for  life  cut  trees,  and 
sold  or  exchanged  them  for  firewood  or 
lumber  for  necessary  repairs  to  the  build- 
ings or  fences,  it  was  held  to  be  waste,  the 


right  of  estovers  being  only  a  right  to  take 
from  the  land  timber  suitable  for  the  very 
purpose  desired.  Padelford  v.  Padelford, 
7  Pick.  153  ;  Elliott  v.  Smith,  2  N.  H.  430 ; 
Fuller  v.  Wason,  7  Id.  341 ;  though  the 
opinion  of  Judge  Story  was  different. 
Loomis  v.  Wilbur,  5  Mason  13  ;  and  see 
Crockett  v.  Crockett,  2  Ohio  St.  180. 

But  it  is  waste  to  cut  timber  on  culti- 
vated land,  except  for  necessary  estovers, 
McGregor  v.  Brown,  10  N.  Y.  118,  even 
where,  at  the  commencement  of  the  estate, 
the  land  was  in  meadow,  but  timber  had 
been  allowed  to  grow  up,  and  the  effect  of 
cutting  it  was  to  restore  the  land  to  its 
condition  when  the  tenant  came  into  pos- 
session, and  though  such  cutting  would 
be  good  husbandry.  Clark  v.  Holden,  7 
Gray  8.  M. 

1  As  to  the  right  of  the  tenant  to  remove 
buildings  erected  by  himself  during  the 
term,  the  student  is  referred  to  Mr.  Hare's 
note  to  the  well-known  case  of  Elwes  v. 
Mawe,  3  East  38,  in  2  Smith's  Leading 
Cases.  R. 

2  This  is  not  generally  held  to  be  waste 
in  the  United  States.  See  the  cases  in 
note  1  to  page  23.  M. 


OP   AN    ESTATE    FOR    LIFE.  24 

minerals,  nor  cut  turf  for  sale  on  bog  lands ;  for  all  such  acts  would  be 
acts  of  voluntary  waste.  But  to  continue  the  working  of  existing  mines, 
or  to  cut  turf  for  sale  in  bogs  already  used  for  that  purpose,  is  not  waste  ; 
and  the  tenant  may  accordingly  carry  on  such  mines  and  cut  turf  in  such 
bogs  for  his  own  profit.(^)1  By  an  old  statute(w)  the  committing  of  any 
act  of  waste  was  a  cause  of  forfeiture  of  the  thing  or  place  wasted,  in 
case  a  ivrit  of  waste  was  issued  against  the  tenant  for  life.  But  this 
writ  is  now  abolished  :(x)  and  a  tenant  for  life  is  now  liable  only  to 
damages  in  an  action  in  the  High  Court  of  Justice^)  for  waste  already 
done,  or  to  be  restrained  by  an  injunction  from  cutting  the  timber  or 
committing  any  other  act  of  waste,  which  he  may  be  known  to  contem- 
plate.^)2 If  any  of  the  timber  is  in  such  an  advanced  state  that  it 
would  take  injury  by  standing,  the  Court  will  allow  it  to  be  cut,  on  the 
*money  being  secured  for  the  benefit  of  the  persons  entitled  on  the  r*9r-i 
expiration  of  the  life  estate ;  and  the  Court  will  allow  the  interest 
of  the  money  to  be  paid  to  the  tenant  during  his  life.(a)3  And  the  Set- 
tled Estates  Act,  1877,(6)  now  empowers  the  Chancery  Division  of  the 
High  Court,  if  it  think  proper,  to  authorize  a  sale  of  any  timber,  not 
being  ornamental  timber,  growing  on  any  settled  estates.  If,  however, 
the  estate  is  given  to  the  tenant  by  a  written  instrument(c)   expressly 

(t)  Co.  Litt.  54  b  ;  Coppinger  v.  Gubbins,  3  Jones  &  Lat.  397. 

(u)  The  Statute  of  Gloucester,  6  Edw.  I.  c.  5 ;  2  Black.  Com.  283;  Co.  Litt.  218  b, 
n.  (2). 

(x)  By  stat.  3  &  4  Will.  IV.  c.  27,  s.  36. 

(y)  Stat.  21  &  22  Vict.  c.  27,  ss.  2,  3 ;  36  &  37  Vict.  c.  66  ;  37  &  38  Vict.  c.  83  ;  38  & 
39  Vict.  c.  77. 

(z)  Stat.  36  &  37  Vict.  c.  66,  s.  25,  subsect.  8. 

(a)  Tooker  v.  Annesley,  5  Sim.  235;  Waldo  v.  Waldo,  7  Sim.  261;  12  Sim.  102; 
Tollemache  v.  Tollemacbe,  1  Hare  456;  Consett  v.  Bell,  1  You.  &  Coll.  New  Cases 
569 ;  Gent  v.  Harrison,  Johnson  517  ;  Lowndes  v.  Norton,  V.  C.  H.  25  W.  R.  826. 

(6)  Stat.  40  &  41  Vict.  c.  18,  s.  16,  repealing  and  re-enacting  stat.  19  &  20  Vict.  c. 
120,  s.  11.  (c)  Dowman's  Case,  9  Rep.  10  b. 

1  A  tenant  for  life  may,  when  not  pre-  sheriff's  sale — a  mortgagee — a  judgment 
eluded  by  restraining  words,  work  open  creditor,  after  the  premises  shall  have 
mines  to  exhaustion;  but  he  cannot  go  been  condemned — a  remainder-man,  or  a 
through  an  old  opening  to  reach  a  new  creditor  of  a  decedent.  Purdon's  Digest 
vein.  That  is,  in  effect,  making  a  new  1465.  See  passim  for  the  statutes  in  other 
opening.  Westmoreland  Coal  Company's  States,  1  Greenleafs  Cruise  on  Real  Prop- 
Appeal,  4  Norris  344.  erty  122.  R. 

2  In  many  of  the  United  States  this  sub-  3  And  the  capital  to  be  transferred  to 
ject  is  regulated  by  statute.  Thus  in  the  first  owners  of  the  inheritance,  or  the 
Pennsylvania  a  writ  of  estrepement  may,  first  tenant  for  life,  without  impeachment 
upon  affidavit  filed,  issue  on  behalf  of  a  of  waste.  Waldo  v.  Waldo,  supra  ;  Phillips 
plaintiff    in    ejectment— a    purchaser    at  v.  Barlow,  14  Simons  263.  R. 


25  OF    CORPOREAL    HEREDITAMENTS. 

declaring  his  estate  to  be  without  impeacJiment  of  waste,  he  is  allowed  to 
cut  timber  in  a  husbandlike  manner  for  his  own  benefit,  to  open  mines, 
and  commit  other  acts  of  waste  with  impunity  ;(d)  but  so  that  he  does  not 
pull  down  or  deface  the  family  mansion,  or  fell  timber  planted  or  left 
standing  for  ornament,  or  commit  other  injuries  of  the  like  nature  ;  all  of 
which  are  termed  equitable  waste ;  for  the  Court  of  Chancery,  adminis- 
tering equity,  will  restrain  such  proceedings. (e)1  The  Supreme  Court 
of  Judicature  Act,  1873,(/)  now  provides  that,  after  the  time  appointed 
for  the  commencement  of  that  act,  namely,  the  first  of  November, 
1875,(<jr)  an  estate  for  life  without  impeachment  of  waste  shall  not 
confer,  or  be  deemed  to  have  conferred,  upon  the  tenant  for  life,  any 
r*9p-i  legal  right  to  *commit  waste  of  the  description  known  as  equita- 
■  ble  waste,  unless  an  intention  to  confer  such  right  shall  expressly 
appear  by  the  instrument  creating  such  estate. (A) 

As  a  tenant  for  life  has  merely  a  limited  interest,  he  cannot  of  course 
make  any  disposition  of  the  lands  to  take  effect  after  his  decease ;  and, 
consequently,  he  can  make  no  leases  to  endure  beyond  his  own  life, 
unless  he  be  specially  empowered  so  to  do  by  the  deed  under  which  he 
holds.  It  is  however  provided  by  the  Settled  Estates  Act,  1877, (/)  that 
when  the  settlement  is  made  after  the  1st  of  November,  1856, (£)  the  day 
when  the  now  repealed  act  to  facilitate  leases  and  sales  of  settled  estates 
came  in  force,(Z)  and  does  not  contain  an  express  declaration  to  the  con- 
trary, every  tenant  for  life  may  demise  the  premises  or  any  part  thereof 
(except  the  principal  mansion-house  and  the  demesnes  thereof,  and  other 
lands  usually  occupied  therewith)  for  any  term  not  exceeding  twenty-one 
years  as  to  estates  in  England,  and  thirty-five  years  as  to  estates  in 

(d)  Lewis  Bowie's  Case,  11  Rep.  82  b ;  2  Black.  Com.  283;  Burges  v.  Lamb,  16  Ves. 
185 ;  Cholmeley  v.  Paxton,  3  Bing.  211  (E.  C.  L.  R.  vol.  11)  ;  10  Barn.  &  Cress.  564  (E. 
C.  L.  R.  vol.  21);  Davies  v.  Wescomb,  2  Sim.  425;  Woolf  v.  Hill,  2  Swanst.  149; 
Waldo  v.  Waldo,  12  Sim.  107. 

(e)  1  Fonb.  Eq.  33,  n. ;  Marquis  of  Downsbire  v.  Lady  Sandys,  6  Ves.  107  ;  Burges  v. 
Lamb,  16  Yes.  183 ;  Day  v.  Merry,  16  Ves.  375  a  ;  Wellesley  v.  Wellesley,  6  Sim.  497  ; 
Duke  of  Leeds  v.  Earl  Amherst,  2  Phil.  117  ;  Morris  v.  Morris,  15  Sim.  505  ;  3  De  Gex 
&  Jones  323  ;  Micklethwait  v.  Micklethwait,  1  De  Gex  &  Jones  504. 

(/)  Stat.  36  &  37  Vict.  c.  66.  (g)  Stat.  37  &  38  Vict.  c.  83. 

(h)  Stat.  36  k  37  Vict.  c.  66,  s.  25,  subsect.  3. 

(?)  Stat.  40  &  41  Vict.  c.  18,  repealing  and  re-enacting  and  amending  stats.  19  &  20 
Vict.  c.  120 ;  21  &  22  Vict.  c.  77  ;  27  &  28  Vict.  c.  45  ;  37  &  38  Vict.  c.  33  ;  and  39  &  40 
Vict.  c.  30. 

(k)  Stat.  40  &  41  Vict.  c.  18,  s.  57.  (I)  Stat.  19  &  20  Vict.  c.  120,  88.  44,  46. 

1  For  the  jurisdiction  of  equity  in  cases     ton,  1  Leading  Cases  in  Equity  559.     See 
of  waste,  the  student  may  profitably  refer     also  2  Story,  Eq.  Jur.  \  913,  et  seq.     M. 
to  the  note  to  Garth  v.  Sir  John  Hind  Cot- 


9fi 

OF   AN    ESTATE   FOR    LIFE. 


Ireland,  to  take  effeet  in  possession  at  or  within  one  year  next  after  the 
lling  thereof ;  provided  that  every  sneh  demise  be  made  by  deed,  and 
The  tot  rent  that  can  reasonably  be  obtained  be  thereby  reserved  with- 
out any  Hne  or  other  benefit  in  the  natnre  of  a  fine,  which  rent  shall  be 
incident  to  the  immediate  reversion;  and  provided  that  such  demise  be 
not  made  without  impeachment  of  waste,  and  do  contain  a  covenant  for 
payment  of  the  rent,  and  such  other  usual  and  proper  covenants  as  the 
lessor  shall  think  fit,  and  also  a  condition  of  re-entry  on  non-payment  of 
he  rent,  for  a  period  of  twenty-eight  days  after  it  becomes  due,  or  for 
sol  less  periods  be  specified  in  that  behalf;  and  provided  a  counter- 
part of  *every  deed  of  lease  be  executed  by  the  lessee. (m)     Bu     ^ 
he  execution  of  the  lease  by  the  lessor  is  to  be  deemed  suffioent 
evidence  that  a  counterpart  of  such  lease  has  been  duly  executed  by  he 
lessee  as  required  by  the  act.(«)    Leases  may  also  be  made  by  the 
authority  of  the  Chancery  Division  of  the  High  Court,  on  due  appl.ca- 
io„,^atever  may  be  the  date  of  the  settlement,  for  terms  not  exceeding 
twenty-one  years  as  to  England,  and  thirty-five  years  as  to  Ireland,  for 
an  agricultural  or  occupation  lease,  forty  years  for  a  mining  lease  or  a 
lease  of  water,  water  mills,  wayleaves,  waterleaves,  or  other  nghts  or 
easements,  sixty  years  for  a  repairing  lease,  ««"-**?•  7™  f°r  » 
building  lease,  subject  to  the  conditions  prescribed  by  the  act      And 
where  t°he  Court  shall  be  satisfied  that  it  is  the  usual  custom  of  the  dis- 
trict  and  beneficial  to  the  inheritance,  to  grant  leases  for  longer  terms, 
any  of  "he  above  leases,  except  agricultural  leases,  may  he  granted  for 
such  term  as  the  Court  shall  direct.(„)    The  best  rent  must  be.reserved 
but  i.   a  mining,  repairing,  or  building  lease,  a  peppercorn  or  any  smaller 
rent  may  be  referred  for°the  first  five  years.(?)    In  the  case  of  a  mimng 
Ltse  a  proportion  of  the  rent  is  set  apart  and  invested  namely  one- 
fourth  where"  the  landlord  is  entitled  to  work  the  mines,  otherwise  three- 
fourths,  (q) 

If  a  tenant  for  life  should  sow  the  lands,  and  die  before  harvest,  his 
executors  will  have  a  right  to  the  emblements'  or  crop.(r)      And  the 

,«)  Stat.  40  .  41  Vict.  c.  18,  s.  46.     See  Taylor  v.  Taylor,  L.  E.  3  Ok. Wr-U^ 

)  •!  a     *    aq  (n\  Spot   4  (»)  Ibid,  secondly,  (g)  lbia.  tniruiy. 

{;j  fBlack/coa..  wl  *eGrl.  v.  WIS,  5  Baro.  .  Ado..  105  (1.  C.  L.  E.  vol.  «), 

[and  Gee  v.  Young,  1  Haywood  17].  ,  _ 

i  «  Emblements"  arT^ro^Tcrops,  ancTg~rowing  grass,  even  if  produced  from  seed 
Emblements    are  g  „        i   ,  and  read    tQ  be  cut 

include  all  annual  products  of  the  eaitb     sow.n  oy  considered  as  emble- 

which   are  raised  by  yearly  expense  and     for  hay,  £™«  £™™™Vm  Smith,  134. 

labor  ;  but  not  fruit   gras,  &c    whic    ai-e     men.      Mr  *.*,  H     ^  ^  ^ 

ZJtTtZ;^  itQw"  ST.     be  terminated  by  the  death  of  the  * 


27  OF    CORPOREAL   HEREDITAMENTS. 

same  right  will  also  belong  to  his  under-tenant;  with  this  difference, 
however,  that  if  the  life  estate  should  determine  by  the  tenant's  own  act, 
as  by  the  marriage  of  a  widow  holding  during  her  widowhood,  the  tenant 
would  have  no  right  to  emblements ;  but  the  under-tenant,  being  no 
f*281  Party  *t0  ^e  cesser  °f  tne  estate,  would  still  be  entitled  in  the 
same  manner  as  on  the  expiration  of  the  estate,  by  death. (s) 
And  with  respect  to  tenants  at  rack  rent,  it  is  now  provided, (t)  that  where 
the  lease  or  tenancy  of  any  farm  or  lands  held  by  such  a  tenant  shall 
determine  by  the  death  or  cesser  of  the  estate  of  any  landlord  entitled 
for  his  life,  or  for  any  other  uncertain  interest,  instead  of  claims  to  em- 
blements, the  tenant  shall  continue  to  hold  and  occupy  such  farm  or 
lands  until  the  expiration  of  the  then  current  year  of  his  tenancy,  and 
shall  then  quit  upon  the  terms  of  his  lease  or  holding,  in  the  same 
manner  as  if  such  lease  or  tenancy  were  then  determined  by  effluxion  of 
time,  or  other  lawful  means,  during  the  continuance  of  his  landlord's 
estate  ;  and  the  succeeding  owner  will  be  entitled  to  a  fair  proportion  of 
the  rent  from  the  death  or  cesser  of  the  estate  of  his  predecessor  to  the 
time  of  the  tenant's  so  quitting.  And  the  succeeding  owner  and  the 
tenant  respectively  will,  as  between  themselves  and  as  against  each  other, 
be  entitled  to  all  the  benefits  and  advantages,  and  be  subject  to  the  terms, 
conditions,  and  restrictions  to  which  the  preceding  landlord  and  the 
tenant  respectively  would  have  been  entitled  and  subject  in  case  the 
lease  or  tenancy  had  determined  in  the  manner  before  mentioned  at  the 
expiration  of  the  current  year;  and  no  notice  to  quit  shall  be  necessary 
from  either  party  to  determine  such  holding. 

As  a  consequence  of  the  determination  of  the  estate  of  a  tenant  for 
life  the  moment  of  his  death,  it  was  held  in  old  times,  that  if  such  a 
tenant  had  let  the  lands  reserving  rent  quarterly  or  half-yearly,  and  died 
between  two  rent-days,  no  rent  was  due  from  the  under-tenant  to  any- 
body from  the  last  rent  day  till  the  time  of  the  decease  of  the  tenant  for 
life.  But  in  the  reign  of  King  George  II.  a  remedy  for  a  proportionate 
r*291  Part  °f  *tne  rent,  according  to  the  time  such  tenant  for  life  lived, 
was  given  by  act  of  parliament  to  his  executors  or  administra- 
tors, (w)     Formerly  also,  when  a  tenant  for  life  had  a  power  of  leasing, 

(*)  2  Black  Com.  123,  124.  (*)  Stat.  14  &  15  Vict.  c.  25,  s.  1. 

(w)  Stat.  11  Geo.  II.  c.  19,  s.  15,  explained  by  stat.  4  &  5  Will.  IV.  c.  22,  s.  1.     See 
Ex  parte  Smyth,  1  Swanst.  337,  and  the  learned  editor's  note. 


que  vie,  after  sowing  of  the  crop,  the  tenant  within  the  year  in  which  that  labor  is  be- 

will  be  entitled  to  emblements,  provided  stowed  :  Graves  v.  Weld,  5  Barn.  &  Adolph. 

the  crop  is  of  that  species  which  ordinarily  105.  R. 

repays  the  labor  by  which  it  is  produced 


OF    AN    ESTATE   FOR    LIFE. 


29 


and  let  the  lands  accordingly,  reserving  rent  periodically,  his  executors 
had  no  right  to  a  proportion  of  the  rent,  in  the  event  of  his  decease 
between  two  quarter  days;  and  as  rent  is  not  due  till  midnight  of  the 
day  on  which  it  is  made  payable,  if  the  tenant  for  life  had  died  even 
on  the  quarter  day,  but  before  midnight,  his  executors  lost  the  quarter  s 
rent,  which  went  to  the  person  next  entitled.^)  But  by  a  modern  act  of 
parliament,^)  the  executors  and  administrators  of  any  tenant  for  life  who 
had  granted  a  lease  since  the  16th  of  June,  1834,  the  date  of  the  ac  , 
might  claim  an  apportionment  of  the  rent  from  the  person  next  entitled, 
when  it  should  become  due.1  This  act,  however,  did  not  apply  unless  the 
demise  were  made  by  an  instrument  in  writiug.(z)  But  the  Apportion- 
ment Act,  1870,(a)  now  provides(6)  that  after  the  passing  of  that  act, 

(x)  Norris  v.  Harrison,  2  Mad.  268. 

S     Stat.  4  A   5  Will.  IV.  c.  22,  s.  2;  Lock  v.  De  Burgh    4  De  Gcx  ft Smale  470 
Plummer  v.  Whiteley,  Johnson  585  ;  Llewellyn  v.  Rous,  U.  R.,  Law  Rep.,  2  Bq.  27  ,  35 

B" )'  See'  Cattley  v.  Arnold,  V.-C.  W.,  5  Jar.  N.  S.  361  ;  1  W.  Rep.  245  :  1  Johns,  ft 
Hem.  651 ;  Mills  v.  Trumper,  L.  R.  4  Oh.  320. 

(a)  Stat.  33  &  34  Vict.  c.  35.     Hasluck  v.  Pedley,  M.  R.,  L.  R.  19  Bq.  271. 

(b)  Sect  2. . 

due  de  die  in  diem,  was  apportionable  be- 
tween the    personal   representatives  of  a 
tenant    for    life    and    those  in  remainder, 
but  rents  which  follow  the  reversion,  and 
annuities,  were   not  apportionable   either 
at    law    or    in    equity;    Ex    parte    Smyth, 
supra;  Perry  v.  Aldrich,  13  N.  Hamp.  343. 
A  well-settled  exception  to  this  rule,  how- 
ever, has  been  established  with  respect  to 
annuities  given  for  the  support  and  main- 
tenance of  a  widow,  a  child,  or  the  like, 
which  are,  in  equity,  apportioned,  to  the 
date  of  the  death  of  the  recipient,  between 
his  or   her  personal   representatives  and 
those  in  remainder:  Hay  v.  Palmer,  1  P. 
Wms.    501  ;    Howell    v.    Haworth,    2    W. 
Blacks.    1016 ;    note  to   Ex  parte  Smyth, 
supra;  Gheen  v.  Osborn,  17  Serg.  ft  Rawle 
171  ;  Fisher  v.  Fisher,   1  Amer.  Law  Jour. 
340  ;  and  in  a  recent  casein  Pennsylvania, 
where  a  testator  devised  certain  ground- 
rents   to    his    widow    for    life    in    lieu    of 
dower,  they  were  held  to  come  within  the 
exception,    although   no   such    statute  as 
that  of  Will.  IV.  had  been  enacted  in  that 
State.     Wister  v.  Smith,  MSS.  R- 


i  The  feudal  law  regarded  rents  as  par- 
taking solely  of  the  realty,  and  gave  no 
personal  action  for  their  recovery,  unless 
the  parties  had  supplied  one  by  taking  a 
covenant  for  their   payment.     Hence  the 
statute  of  32  Hen.  VIII.  c.  37,  after  recit- 
ing that  at  common  law  the  executors  of 
tenants  in  fee  simple  or  tail,  and  tenants 
for  terms   of  years  of  rent  services,  rent 
charges,  rents  rack,  or  fee  farms,  had  no 
remedy   to   recover    arrearages   due    their 
testators  in  their  lifetime,  nor  could  the 
heirs  distrain  therefor,  gave  an  action  of 
debt,  and  a  right  of  distress  to  the  execu- 
tor of  such  tenant,  for  all  arrearages  due 
and  unpaid  at  the  time  of  his  death.    Then 
followed  the  statute  of  Geo.  II.  referred  to 
in  the  text.     It  will  be  observed  that  these 
two  statutes  relate  solely  to  the  liability 
of  the  tenant  or  party  paying  the  rent,  and 
they  have  been  re-enacted  in  Pennsylva- 
nia and  most  of  the  United  States.     Pur- 
don's    Digest   424;    2    Greenleaf's    Cruise 
300.    The  statute  of  Will.  IV.,  however,  re- 
ferred to  in  the  text,  relates  to  the  rights 
of  the  respective  parties  to   receive  rent. 
Interest  upon  bonds  and  mortgages,  being 


29  OF    CORPOREAL    HEREDITAMENTS. 

which  took  place  on  the  first' of  August,  1870,  all  rents  and  other  periodi- 
cal payments  in  the  nature  of  income  (whether  reserved  or  made  payable 
under  an  instrument  in  writing  or  otherwise)  shall,  like  interest  on 
money  lent,  be  considered  as  accruing  from  day  to  day,  and  shall  be  ap- 
portionable  in  respect  of  time  accordingly. 

r^.on-1  *By  an  act  of  the  present  reign(c)  tenants  for  life,  and  some 
other  persons  having  limited  interests,  were  empowered  to  apply  to 
the  Court  of  Chancery  for  leave  to  make  any  permanent  improvements 
by  draining  the  lands  with  tiles,  stones,  or  other  durable  materials,  or 
by  warping,  irrigating,  or  embankment  in  a  permanent  manner,  or  by 
erecting  thereon  any  buildings  of  a  permanent  kind  incidental  or  conse- 
quential to  such  draining,  warping,  irrigation,  or  embanking,  and  imme- 
diately connected  therewith. {d)  And  if,  in  the  opinion  of  the  Court, 
such  improvements  would  have  been  beneficial  to  all  persons  interested,(e) 
the  money  expended  in  making  such  improvements,  or  in  obtaining  the 
authority  of  the  Court,  was  to  be  charged  on  the  inheritance  of  the  lands, 
with  interest  at  such  rate  as  should  have  been  agreed  on,  not  exceeding 
five  per  cent,  per  annum,  payable  half  yearly ;  (f)  the  principal  money 
to  be  repaid  by  equal  annual  installments,  not  less  than  twelve  nor  more 
than  eighteen  in  number ;  or  in  the  case  of  buildings,  by  equal  annual 
installments,  not  less  than  fifteen  nor  more  than  twenty-five  in  number. (g) 
And  under  the  provisions  of  more  recent  acts  of  parliament,(A)  called 
the  Public  Money  Drainage  Act,  tenants  for  life  and  other  owners  of 
land  may  obtain  advances  from  government  for  works  of  drainage, 
which  may  be  completed  within  five  years ;  (i)  such  advances  to  be  repaid 
by  a  rent-charge  on  the  land,  after  the  rate  of  61.  10s.  rent-charge  for 
every  1002.  advanced,  and  to  be  payable  for  the  term  of  twenty- 
r*31~l  *two  years. (&)  By  another  act  of  parliament  called  the  Private 
Money  Drainage  Act,  1849,(2)  the  owner  of  any  land  in  Great 
Britain  or  Ireland  was  empowered  to  borrow  or  advance  money  for  the 
improvement  of  such  land  by  works  of  drainage ;  such  money,  with  in- 
terest not  exceeding  five  per  cent,  per  annum,  to  be  charged  on  the 

(c)  Stat.  8  &  9  Vict.  c.  56,  repealing  a  prior  act  for  the  same  purpose,  stat.  3  &  4 
Vict.  c.  55. 

(d)  Sect.  3.  (e)  Ss.  4,  5.  (/)  Sect.  8. 
(ff)  Sect.  9. 

(h)  Stat.  9  &  10  Vict.  c.  101,  explained  and  amended  by  stats.  10  &  11  Vict.  c.  11  ; 
11  &  12  Vict.  c.  119 ;   13  &  14  Vict.  c.  31,  and  19  and  20  Vict.  c.  9. 
(i)  Stat.  10  &  11  Vict.  c.  11,  s.  7. 
(k)  Stat.  9  &  10  Vict.  c.  101,  s.  34. 
(Z)  Stat.  12  &  13  Vict.  c.  100,  amended  by  stat.  19  &  20  Vict.  c.  9. 


OF   AN   ESTATE   FOR   LIFE.  31 

inheritance  of  the  land,  in  the  shape  of  a  rent-charge,  for  the  term  of 
twenty-two  years.  This  act,  however,  is  now  repealed  by  the  Improve- 
ment of  Land  Act,  1864,(m)  which  gives  a  very  wide  definition  to  the 
phrase  "improvement  of  land,"  and  contains  provisions  for  facilitating 
the  raising  of  money  by  way  of  rent-charge  for  that  purpose.  The  rate  of 
interest  to  be  charged  is  not  to  exceed  five  per  cent,  per  annum,  and  the 
term  for  repayment  is  not  to  exceed  twenty-five  years. (n)  These  loans 
are  under  the  superintendence  of  the  Inclosure  Commissioners  for  Eng- 
land and  Wales,  and  in  Ireland  under  that  of  the  Commissioners  for 
Public  Works  in  Ireland.  But  the  authority  to  issue  certificates  of  the 
redemption  of  the  loans  of  public  money  belongs  to  the  Board  of  Inland 
Revenue.(o)  An  act,  styled  the  "  Limited  Owners  Residence  Act,  1870, 
Amendment  Act,  1811  "(p)  now  provides(g)  that  the  following  shall  be 
improvements  within  the  meaning  of  the  Improvement  of  Land  Act,  1864, 
namely,  the  erection  of  a  mansion-house  and  such  other  usual  and  neces- 
sary buildings,  outhouses,  and  offices  as  are  commonly  appurtenant  thereto 
and  held  and  enjoyed  therewith,  and  the  completion  of  any  mansion- 
house  and  such  appurtenances  as  aforesaid,  and  the  improvement  of  and 
addition  to  any  mansion-house  and  *such  appurtenances  as  afore-  r*Q9-| 
said  already  erected,  and  the  improvement  of  and  addition  to  any 
house  which  is  capable  of  being  converted  into  a  mansion-house  suitable 
to  the  estate  on  which  the  same  stands,  so  as  such  improvement  and  ad- 
dition be  of  a  permanent  nature;  provided  that  every  such  mansion-house 
so  erected  or  enlarged  or  converted  is  suitable  to  the  estate  on  which  it 
stands  as  a  residence  for  the  owner  of  such  estate. (r)  But  the  sum 
charged  on  any  estate  under  settlement  in  respect  of  mansion  and  other 
buildings  before  mentioned  is  not  to  exceed  two  years'  net  rental  of  the 
whole  estate.(s)  In  all  other  respects,  improvements  which  a  tenant  for 
life  may  wish  to  make  must  be  paid  for  out  of  his  own  pocket. (t) 

Tenants  for  life  under  wills  are  empowered,  by  recent  acts  of  parlia- 

(m)  Stat.  27  &  28  Vict.  c.  114.  Also  stat.  40  &  41  Vict.  c.  31,  now  incorporated  there- 
with. . 

(n)  Stat.  27  &  28  Vict.  c.  114,  s.  26.  (o)  Stat.  19  &  20  Vict.  c.  9,  s.  10. 

(p)  Stat.  34  &  35  Vict.  c.  84.  (q)  Sect.  3. 

(r)  The  term  "  estate"  in  this  section  includes  all  lands  upon  which  any  of  such  im- 
provements is  proposed  to  be  made,  and  any  other  lands  in  the  neighborhood  of  the 
same  settled  to  the  same  uses. 

(s)  Stat.  33  &  34  Vict.  c.  56,  s.  4. 

(t)  Nairn  v.  Majoribanks,  3  Russ.  582;  Hibbert  v.  Cooke,  1  Sim.  &  Stu.  552; 
Caldecott  v.  Brown,  2  Hare  144  ;  Horlock  v.  Smith,  17  Beav.  572  ;  Dunae  v.  Dunne,  7 
De  Gex,  M.  &  G.  207;  Dent  v.  Dent,  30  Beav.  363. 


32  OF    CORPOREAL    HEREDITAMENTS. 

rnent,  to  convey  in  certain  cases,  under  the  direction  of  the  Chancery- 
Division  of  the  High  Court,  the  whole  estate  in  the  lands  of  which  they 
are  tenants  for  life.  Such  conveyances  are  made  only  when  the  concur- 
rence of  the  other  parties  cannot  be  obtained,  and  a  sale  or  mortgage  of 
the  lands  is  required  for  the  payment  of  the  debts  of  the  testator.(w) 
These  powers,  however,  are  given  to  the  tenant  for  life  for  the  sake  of 
making  a  title  to  the  property  ;  and  are  more  for  the  benefit  of  the  cred- 
itors of  the  late  testator,  than  for  the  advantage  of  the  tenant  for  life, 
who  is,  in  these  cases,  merely  the  instrument  for  carrying  into  effect  the 
r*oo-i  decree  of  the  Court ;  and  the  powers  given  by  these  acts  are 
*now  in  a  great  measure  superseded  by  the  provisions  of  the  act 
to  consolidate  and  amend  the  laws  relating  to  the  conveyance  and  trans- 
fer of  real  and  personal  property  vested  in  mortgagees  and  trustees.(:r) 
More  recently,  however,  an  act  was  passed,  to  which  we  have 
already  referred,^)  to  facilitate  leases  and  sales  of  settled  estates.(^) 
This  act,  and  the  acts  by  which  it  was  amended,  have  now  been  re- 
pealed, amended,  and  consolidated  by  the  Settled  Estates  Act,  1877. (a) 
Under  this  act,  if  the  Chancery  Division  of  the  High  Court  should  deem 
it  proper  and  consistent  with  a  due  regard  for  the  interest  of  all  parties 
entitled,  a  sale  of  any  settled  estate  may  be  ordered  to  be  made.  And 
the  money  to  be  raised  on  any  such  sale  is  to  be  paid  either  to  trustees 
of  whom  the  Court  shall  approve,  or  into  Court,  and  is  to  be  applied  to 
the  following  purposes,  namely,  the  redemption  of  the  land  tax,  or  of 
any  incumbrance  affecting  the  hereditaments  sold  or  any  other  heredita- 
ments settled  in  the  same  way,  or  the  purchase  of  other  hereditaments 
to  be  settled  in  the  same  manner,  or  in  the  payment  to  any  person 
becoming  absolutely  entitled. (b)  And  the  money  is  in  the  meantime  to 
be  invested  in  some,  or  one,  of  the  investments  in  which  cash  under  the 
control  of  the  Court  is  for  the  time  being  authorized  to  be  invested,  and 
the  interest  or  dividends  paid  to  the  tenant  for  life.(c)  But  the  powers 
of  the  act  are  not  to  be  exercised  if  an  express  declaration  that  they 
shall  not  be  exercised  is  contained  in  the  settlement.^) 

The  following  new  provision  is  contained  in  the  Settled  Estates  Act, 

j-^q  •-]    1877,  and  is  very  important  to  *tenants  for  life  and  other  owners 

of  limited  estates.     The  Court  is  empowered,^)  if  it  shall  deem 

(w)  Stats.  11  Geo.  IV.  &  1  Will.  IV.  c.  47,  s.  12  ;  2  &  3  Vict.  c.  60. 
(x)  Stat.  13  &  14  Vict.  c.  60,  s.  29.  {y)  Ante,  p.  26. 

(z)  Stat,   19  &  20  Vict.  c.  120,  amended  by  stat.  21  &  22  Vict.  c.  77  ;  27  &  28  Vict. 
c.  45  ;  37  &  38  Vict.  c.  33,  and  39  &  40  Vict.  c.  30. 

(a)  Stat.  40  &  41  Vict.  c.  18.  (b)  Sect.  34.  (c)  Sect.  36. 

(d)  Sect.  38.  (e)  Stat.  40  &  41  Vict.  c.  18,  s.  17. 


OF   AN    ESTATE    FOR    LIFE. 


o4 


it  proper  and  consistent  with  a  due  regard  for  the  interests  of  all  parties 
who  are  or  may  hereafter  be  entitled  under  the  settlement,  and  subject 
to  the  provisions  and  restrictions  contained  in  the  act,  to  sanction  any 
action  of  defence,  petition  to  Parliament,  parliamentary  opposition,  or  other 
proceedings  appearing  to  the  Court  necessary  for  the  protection  of  any 
settled  estate,  and  to  order  that  all  or  any  part  of  the  costs  and  expenses 
in  relation  thereto  be  raised  and  paid  by  means  of  a  sale  or  mortgage  of 
or  charge  upon  all  or  any  part  of  the  settled  estate,  or  out  of  the  rents 
and  profits  thereof,  or  out  of  any  moneys  or  investments  representing 
moneys  liable  to  be  laid  out  in  the  purchase  of  hereditaments  to  be  settled 
in  the  same  manner  as  the  settled  estate,  or  out  of  the  income  of  such 
moneys  or  investments,  or  out  of  any  accumulations  of  rents,  profits,  or 


income. 


In  addition  to  estates  for  life  expressly  created  by  the  acts  of  the 
parties,  there  are  certain  life  interests,  created  by  construction  and 
operation  of  law,  possessed  by  husbands  and  wives  in  each  other's  land. 
These  interests  will  be  spoken  of  in  a  future  chapter.  There  are  also 
certain  other  life  estates  held  by  persons  subject  to  peculiar  laws ;  such 
as  the  life  estates  held  by  beneficed  clergymen.  These  estates  are 
exceptions  from  the  general  law  ;  and  a  discussion  of  them,  in  an  ele- 
mentary work  like  the  present,  would  tend  rather  to  confuse  the  student 
than  to  aid  him  in  his  grasp  of  those  general  principles  which  it  should 
be  his  first  object  to  comprehend. 


[*35]  CHAPTER   II. 

OF    AN    ESTATE    TAIL.1 

The  next  estate  we  shall  notice  is  an  estate  tail,  or  an  estate  given  to 
a  man  and  the  heirs  of  his  body.  This  is  such  an  estate  as  will,  if  left 
to  itself,  descend,  on  the  decease  of  the  first  owner,  to  all  his  lawful 
issue,2  children,  grandchildren,  and  more  remote  descendants,  so  long  as 
his  posterity  endures, — in  a  regular  order  and  course  of  descent  from 
one  to  another ;  and,  on  the  other  hand,  if  the  first  owner  should  die 
without  issue,  his  estate,  if  left  alone,  will  then  determine.  An  estate 
tail  may  be  either  general,  that  is,  to  the  heirs  of  his  body  generally  and 
without  restriction,  in  which  case  the  estate  will  be  descendible  to  every 
one  of  his  lawful  posterity  in  due  course ;  or  special,  when  it  is  restrained 
to  certain  heirs  of  his  body,  and  does  not  go  to  all  of  them  in  general ; 
thus,  if  an  estate  be  given  to  a  man  and  the  heirs  of  his  body  by  a  par- 
ticular wife;  here  none  can  inherit  but  such  as  are  his  issue  by  the  wife 
specified.  Estates  tail  may  be  also  in  tail  male,  or  in  tail  female :  an 
estate  in  tail  male  cannot  descend  to  any  but  males,  and  male  descendants 
of  males ;  and  cannot,  consequently,  belong  to  any  one  who  does  not 
bear  the  surname  of  his  ancestor  from  whom  he  inherited:  so  an  estate 
in  tail  female  can  only  descend  to  females,  and  female  descendants  of 
females. (a)  Special  estates  tail,  confined  to  the  issue  by  a  particular  wife, 
are  not  now  common  :  the  most  usual  kinds  of  estates  tail  now  given  are 
estates  in  tail  general,  and  in  tail  male.  Tail  female  scarcely  ever  occurs, 
r^qp-i  *The  owner  of  an  estate  tail  is  called  a  donee  in  tail,  and  the 
person  who  has  given  him  the  estate  tail  is  called  the  donor. 
And  here  it  may  be  remarked  that  such  correlative  words  as  donor  and 
donee,  lessor  and  lessee,  and  many  others  of  a  like  termination,  are  used 

(a)  Litt.  ss.  13,  14,  15,  16,  21  ;  2  Black.  Com.  113,  114. 

1  Estates  tail  are  believed  never  to  have  remainder  in  fee  to  the  person  who  would 

been  numerous  in  the  United  States,  and  first  take  per  formam  doni  on  the  death  of 

have   now   been  abolished   by   statute   in  the  donee.     The  proper  comprehension  of 

many  if  not  most  of  the  States.     In  some  the  principles  relating  to  such  estates  is 

of  the  States  the  words  which  previous  to  therefore  still  of  the  utmost  importance  to 

the  statute  created  a  fee  tail,  now  create  a  American  lawyers.                                  M. 

fee  simple  in  the  donee,  while   in  others  2  The  American  student  will  of  course 

they  create  a  life  estate  in  the  donee  with  understand  this  to  mean,  according  to  the 

remainder  in  fee   simple   to   the   issue  as  canons  of  descent.     See  infra,  Chap.  IV. 

tenants    in   common,    or   in   others   with  R. 


OF    AN    ESTATE    TAIL. 


in  law  to  distinguish  a  person  from  whom  an  act  proceeds,  from  the 
person  for  or  towards  whom  it  is  done.  The  owner  of  an  estate  tail  is 
also  called  a  tenant  in  tail,  for  he  is  as  much  a  holder  as  a  tenant  for 
life  But  an  estate  tail  is  a  larger  estate  than  an  estate  for  We,  as  it 
may  endure  so  long  as  the  first  owner  of  the  estate  has  any  issue  of  the 
kind  mentioned  in  the  gift.  It  is  consequently  an  estate  of  freehold. 
We  shall  now  proceed  to  give  a  short  history  of  this  estate ;  m  doing 
which  it  will  he  necessary  to  advert  to  the  origin  and  progress  of  the 
general  right  of  alienation  of  lands. 

It  will  readily  be  supposed  that  a  mere  system  of  life  estates,  con- 
tinually granted  by  feudal  lords  to  their  tenants,  would  not  long  con- 
tinue;  the  son  of  the  tenant  would  naturally  be  the  first  person  who 
would  hope  to  succeed  to  his  father's  tenancy :   accordingly  we  find  that 
the  holding  of  lands  by  feudal  tenants  soon  became  hereditary,  permis- 
sion being  granted  to  the  heirs  of  the  tenant  to  succeed  on  the  decease 
of  their  ancestor.     By  the  term  «  heirs"  it  is  said  that  the  issue  of  the 
tenant  were  at  first  only  meant ;   collateral  relations,  such  as  brothers 
and  cousins,  being  excluded  ;(6)  the  true  feudal  reason  of  this  construc- 
tion is  stated  by  Blackstone  to  be,  that  what  was  given  to  a  man  tor  his 
personal  service  and  personal  merit  ought  not  to  descend  to  any  but  the 
heirs  of  his  person.(c)     But  in  oar  own  country  it  appears  that,  at  any 
rate  in  the  time  of.  Henry  II.,(d)  collateral  relations  were  admitted  to 
♦succeed  as  heirs;   so  that  an  estate  which  had  been  granted  to    ^^ 
a  man  and  his  heirs  descended,  on  his  decease,  not  only  to  his 
offspring,  but  also,  in  default  of  offspring,  to   his   other  relations  m   a 
defined  order  of  succession.     Hence  if  it  were  wished  to   confine  the 
inheritance  to  the  offspring  of  the  donee,  it  became  necessary  to  limit  the 
estate  expressly  to  him  and  the  heirs  of  his  body,{e)  making  what  was 
then  called  a  conditional  gift,  by  reason  of  the  condition  implied  in  the 
donation,  that  if  the  donee  died  without  such  particular  heirs,  or  in  case 
of  the  failure  of  such  heirs  at  any  future  time,  the  land  should  revert 
to  the  donor.(/)     The  most  usual   species  of  grant  appears  however 
to  have  been  that  to  a  man  and  his  heirs  generally ;  but,  as  the  right  of 
alienation  seems  to  have  arisen  in  the  same  manner  with  regard   to 
estates  granted  in  both  the  above  methods,  it  will  be  desirable,  in  con- 
sidering the  origin  of  this  right,  to  include  in  our  remarks  as  well  an 

(6)  Wright's  Tenures  18.  W  2  Black.  Com.  221. 

(d)  1  Reeves's  Hist.  Eng.  Law  108. 

(e)  Bracton,  lib.  2,  cap.  6,  fol.  11  b  ;  cap.  19,  fol.  Al  a ;  Co.  Lxtt.  290  b,  u.  (1,)  V-  1. 
(/)  2  Black.  Com.  110. 


37  OF    CORPOREAL   HEREDITAMENTS. 

estate  granted  to  a  man  and  his  heirs,  as  an  estate  confined  to  the  heirs 
of  the  body  of  the  grantee. 

In  whichever  method  the  estate  might  have  been  granted,  it  is  evident 
that,  besides  the  tenant,  there  were  two  other  parties  interested  in  the 
lands ;  one,  the  person  who  was  the  expectant  heir  of  the  tenant,  and 
who  had,  under  the  gift,  a  hope  of  succeeding  his  ancestor  in  the  hold- 
ing of  the  lands ;  the  other,  the  lord  who  had  made  the  grant,  and 
who  had  a  right  to  the  services  reserved  during  the  continuance  of  the 
tenancy,  and  also  a  possibility  of  again  obtaining  the  lands  on  the  fail- 
ure of  the  heirs  mentioned  in  the  gift.  An  alienation  of  the  lands  by 
the  tenant  might  therefore,  it  is  evident,  defeat  the  rights  of  one  or 
both  of  the  above  parties.  Let  us,  therefore,  consider,  in  the  first 
*place,  the  origin  and  progress  of  the  right  of  alienation  as  it 
affected  the  interest  of  the  expectant  heir ;  and  secondly,  the 
origin  and  progress  of  this  right  as  it  affected  the  interest  of  the  lord. 

The  right  of  an  ancestor  to  defeat  the  expectation  of  his  heir  was  not 
fully  established  at  the  time  of  Henry  II.  For  it  appears  from  the 
treatise  of  Glanville,  written  in  that  reign, (g)  that  a  larger  right  of 
alienation  was  possessed  over  lands  which  a  man  had  acquired  by  pur- 
chase,1 than  over  those  which  had  descended  to  him  as  the  heir  of  some 
deceased  person :  and  even  over  purchased  lands  the  right  of  alienation 
was  not  complete,  if  the  tenant  had  any  heir  of  his  own  body  ;(h)  so  that 
if  lands  had  been  given  to  a  man  and  his  heirs  generally,  he  was  able  to 
disappoint  the  expectation  of  his  collateral  heirs,  but  he  could  not  entirely 
disinherit  the  heirs  sprung  of  his  own  body.  For  certain  purposes,  how- 
ever, alienation  of  part  of  the  lands  was  allowed  to  defeat  the  heirs  of 
his  body ;  thus  part  of  the  lands  might  be  given  by  the  tenant  with  his 
daughter  on  her  marriage,  and  part  might  also  be  given  for  religious 
uses. (i)     Such  gifts  as  these  were,  however,  as  we  shall  presently  see, 

(ff)  1  Reeves's  Hist.  Eng.  Law  223.  (A)  Ibid.  105. 

(i)  Glanville,  lib.  7,  c.  1  ;   1  Reeves's  Hist.  104. 

1  And  which  were  called  Terra  acquietata,  dren,   without  the   consent   of  the   eldest 

or  de  comparato,  as  distinguished  from  the  son.     Glanville,  vii.  c.   1.     In   Louisiana, 

family    estate,    or   alodis.     At   the    period  at  the  present  day,  children  cannot  be  dis- 

spoken  of  in  the  text,  a  feudatory  might  inherited  of  their  legitime,  as  it  is  called, 

alien  a  reasonable  portion  (one-fourth  it  unless  for  some  one  or  more  of  ten  enu- 

is  supposed)  of  the  latter,  but  he  could  not  merated    causes;    such    as    attempting   to 

alienate  the  former  so  as  to  disinherit  his  strike  the  parent,   marrying  without  his 

eldest  son,  nor  could  he  even  provide  an  or  her  consent,  &c.     Code  of  Louisiana, 

inheritance  out  of  it  for  his  younger  chil-  \  1609,  et  seq.  R- 


OF    AN    ESTATE   TAIL. 


38 


almost  the  only  kinds  of  alienation,  in  ancient  times,  which  occasioned 
any  serious  detriment  to  the  heir ;  and  the  allowing  of  such  gifts  may 
accordingly  be  considered  as  an  important  step  in  the  progress  of  the 
right  of  "alienation.     For,  when  lands  were  given  to  a  daughter  on  her 
marriage,  the  daughter  and  her  husband,  or  the  donees  in  frank-mar- 
riage, as  they  were  called,  held  the  lands  granted  to  them  and  the  heirs 
of  their  two  bodies  free  from  all  manner  of  service  to  the  donor  or  his 
heirs  (a  mere  oath  of  fealty  or  fidelity  excepted),  until  the  fourth  degree 
of  ^consanguinity  from  the  donor  was  passed  ;(k)  and  when  lands    pgg-. 
were  given°  to  religious   uses,  the  grantees  in  frankalmoign,  as 
they  were  called,  were  forever  free  from   every  kind  of  earthly  or  tem- 
poral service^)1     Little  or  nothing,  therefore,  in  these  cases,  remained 
for  the  heir  of  the  grantor.     But  the  other  modes  of  alienation  which 
then  prevailed  were  very  different  in  their  results,  as  well  from  such  gifts 
as  above  described,  as  from  the  ordinary  sales  of  landed  property  which 
occur  in  modern  times.     Ready  money  was  then  extremely  scarce ;  large 
fortunes,  acquired  by  commercial  enterprise,  were  not  then  expended  in 
the  purchase  of  country  seats.    The  auction  mart  was  not  then  established ; 
such   a  thing  as   an  absolute  sale  for  a  sum  of  money  paid  down  was 
scarcely  to  be  met  with.     The  alienation  of  lands  rather  assumed  the  form 
of  perpetual  leases,  granted  in  consideration  of  certain  services  or  rents 
to  be  from  time  to  time  performed  or  paid.     This  method  was,  in  feudal 
language,  termed  subinfeudation.     In   all  the  old  conveyances,  almost 
without  exception,  the  lands  are  given  to  the  grantee  and  his  heirs,  to 
hold  as   tenants  of  the  grantor  and  his  heirs,  at  certain   rents  or  ser- 
vices ;(wi)  and  when  no  particular  service  was  reserved,  it  was  understood 
that  the  grantee  held  of  the  grantor,  subject  to  the  same  services  as  the 
grantor  *held  of  his  superior  lord.(w)     As,  therefore,  it  cannot  be    j-*^ 
supposed  that  gifts  should  be  made  without  some  fair  equivalent, 

(k)  Litt.  sects.  11,  19,  20.  (?)  Litt.  sect.  135. 

(m)  All  th^forms  of  feoffments  given  in  Madox's  Formulare  Anghcanum,  with  the 
exception  of  Nos.  318  and  325,  are  in  this  form.  No.  318  is  a  gift  in  frankalmoign,  and 
was- afterwards  confirmed  by  the  son  of  the  grantor  (see  title  Confirmation,  No  119)  ; 
arid  No  325  appears  to  have  been  a  family  transaction  between  a  father  and  Ins  son. 
The  curious  questions  mentioned  in  Glanville  (lib.  7,  c.  1)  as  to  the  descent  of  lands 
/which  had  been  granted  by  a  father  to  one  of  his  younger  sons,  or  by  a  brother  to  his 
younger  brother,  clearly  show  that  grants  of  land  were  then  made  by  subinfeudation. 
\Mr  Reeves's  observation  (1  Hist.  Eng.  Law  106,  n.  (m)  ),  that  the  reservation  of  ser- 
vices was  most  commonly  made  to  the  feoffor,  appears  to  be  scarcely  strong  enough. 
\(n)  Perkins's  Profitable  Book,  sees.  529,  653.  ^ 

i  Such  lauds  could,  of  course,  only  be     not  to  the  tenant  and   his  heirs,  but   his 
held  by  ecclesiastics,  and  the  grant  was     successors,  M- 


40  OF   CORPOREAL   HEREDITAMENTS. 

and  as  such  equivalent,  in  the  shape  of  rent  or  service,  would  descend  to 
the  heir  in  lieu  of  the  land,  we  may  fairly  presume  that  alienation,  as 
ordinarily  practiced  in  early  times,  was  not  so  great  a  disadvantage  to 
the  heir  as  might  at  first  be  supposed :  and  this  circumstance  may  per- 
haps help  to  account  for  that  which  at  any  rate  is  an  undoubted  fact,  that 
the  power  of  an  ancestor  to  destroy  the  expectation  of  his  heirs,  whether 
merely  collateral  or  heirs  of  his  body,  soon  became  absolute.  In  which- 
ever way  the  grant  were  made,  whether  to  the  ancestor  and  his  heirs,  or 
to  him  and  the  heirs  of  his  body,  we  find  that  by  the  time  of  Henry  III. 
the  heir  was  completely  in  his  ancestor's  power,  so  far  as  related  to  any 
lands  of  which  the  ancestor  had  possession.  Bracton,  who  wrote  in  this 
reign,  expressly  lays  it  down,  that  the  heir  acquires  nothing  from  the 
gift  made  to  his  ancestor. (o)  The  very  circumstance  that  land  was  given 
to  a  person  and  his  heirs,  or  to  him  and  the  heirs  of  his  body,  enabled 
him  to  convey  an  interest  in  the  land,  to  last  as  long  as  his  heirs  in  the 
one  case,  or  the  heirs  of  his  body  in  the  other,  continued  to  exist.  And 
from  the  time  of  Bracton,  a  gift  to  a  man  and  his  heirs  generally  has 
enabled  the  grantee  either  entirely  to  defeat  the  expectation  of  his  heir 
by  an  absolute  conveyance,1  or  to  prejudice  his  enjoyment  of  the  de- 
scended lands  by  obliging  him  to  satisfy  any  debts  or  demands,  to  the 
value  of  the  lands,  according  to  his  ancestor's  discretion.  With  respect 
to  lands  granted  to  a  man  and  the  heirs  of  his  body,  the  power  of  the 
ancestor  is  not  now  so  complete.  The  means  by  which  this  right  of 
r*d.n  *ahenation  was  in  this  case  curtailed  will  appear  in  the  account 
we  shall  now  give  of  the  origin  and  progress  of  the  right  of  alien- 
ation as  it  affected  the  interest  of  the  lord. 

The  interest  of  the  lord  was  evidently  of  two  kinds  :  his  interest  in  the 
rent  and  services  during  the  continuance  of  the  tenancy,  and  his  chance 
or  possibility  of  again  obtaining  the  land  on  failure  of  the  heirs  of  his 
tenant.  On  the  former  of  these  interests,  the  inroad  of  alienation 
appears  to  have  been  first  made.  The  tenants,  by  taking  upon  them- 
selves to  make  grants  of  part  of  their  lands  to  strangers  to  hold  of  them- 
selves, prejudiced  the  security  possessed  by  the  lord  for  the  due 
performance  of  the  services  of  the  original  tenure.  And  accordingly  we 
find  it  enacted  in  Magna  Charta(p)  that  no  freeman  should  give  or  sell 

(o)  Bracton,  lib.  2,  cap.  6,  fol.  17  a.     Nihil  acquirit  ex  donatione  facta  antecessiori, 
quia  cum  donatorio  non  est  feoffatus. 
O)  Chap.  32. 

1  For,  as  Coke  says,  "  If  land  be  given     totally  in  him,  that  he  may  give  the  lands 
to  a  man  and  his  heirs,  all  his  heirs  are  so     to  whom  he  will."     Co.  Litt.  22  b.       R. 


OF   AN    ESTATE   TAIL.  41 

any  more  of  his  land  than  so  as  what  remained  might  be  sufficient  to 
answer  the  services  he  owed  to  his  lord.  The  original  services  reserved 
on  any  conveyance  were,  however,  always  a  charge  on  the  land  while  in 
the  hands  of  the  under-tenants,  and  could  be  distrained  for  by  the  lord  ;[q) 
although  the  enforcement  of  such  services  was  doubtless  rendered  less 
easy  by  the  division  of  the  lands  into  various  ownerships.  The  infringe- 
ment on  the  lord's  interest,  expectant  on  the  failure  of  the  heirs  of  his 
tenant,  appears  to  have  been  the  last  step  in  the  progress  of  alienation. 
As  the  advantages  of  a  free  power  of  disposition  became  apparent,  a  new 
form  of  grant  came  into  general  use.  The  lands  were  given  not  only  to 
the  tenant  and  his  heirs,  but  to  him  and  his  heirs,  or  to  whomsoever  lie 
might  wish  to  give  or  assign  the  land,(r)  or  with  other  words  expressly 
conferring  on  the  tenant  the  power  of  alienation. (s)  In  this  case,  if  the 
tenant  granted  or  underlet,  *as  it  were,  part  of  his  land,  then,  on  r^jon 
his  decease  and  failure  of  his  heirs,  the  tenant's  grantee  had  still 
a  right  to  continue  to  hold  as  tenant  of  the  superior  lord ;  and  such 
superior  lord  then  took  the  place  of  landlord,  which  the  original  tenant 
or  his  heirs  would  have  occupied  had  he  or  they  been  living.(^)  And  if 
the  tenant,  instead  of  thus  underletting  part  of  his  land,  chose  to  dispose 
of  the  whole,  he  was  at  liberty  so  to  do,  by  substituting,  if  he  thought 
fit,  a  new  tenant  in  his  own  place.(w)  Grants  of  lands  with  liberty  of 
alienation,  as  they  became  more  frequent,  appear  in  process  of  time  to 
have  furnished  the  rule  by  which  all  grants  were  construed.  During  the 
long  and  feeble  reign  of  Henry  III.  this  change  to  the  disadvantage  of 
the  lord  appears  to  have  taken  place ;  for  at  the  beginning  of  the  next 
reign  it  seems  to  have  been  established  that,  in  whatever  form  the  grant 
were  made,  the  fact  of  the  existence  of  an  expectant  heir  enabled  the 
tenant  to  alienate,  not  only  as  against  his  heirs,  but  also  as  against  the 
lord.     If  therefore  lands  were  given  to  a  man  and  his  heirs,  he  could  at 

(q)  Perkins's  Profitable  Book,  sect.  674.  (r)  Bract,  lib.  2,  c.  6,  fol.  17  b. 

(s)  Madox's  Formulare  Anglicanum,  Preliminary  Dissertation,  p.  5.  The  tendency 
towards  the  alienation  of  lands  was  perhaps  fostered  by  the  spirit  of  crusading;  see  1 
Watkins  on  Copyholds,  pp.  149,  150. * 

(t)  Bract,  ubi  sup.  (u)  See  stat.  4  Edw.  I.  c.  6. 

1  Dr.  Sullivan,  in  his  Lectures,  149,  has  inflaming    this    superstition, — the  former, 

•no  doubt  whatever  as  to  this,  and  says  :  from  ambition  and  avarice,  the  latter,  from 

"These  pilgrims  who  assumed  the   cross  the  hope  of  lessening  the  power  of  their 

had  no  way  of  defraying  the  expense,  but  too  great  and  powerful  vassals ;  and  that 

by  the  sale   of  their   lands,  which   their  the   alienations  were   so   many,  that   the 

lords,  if  disinclined,  dared  not  to  gainsay,  lord,  on  payment  of  a  moderate  fine,  was 

or  obstruct  so  pious  a  work;"  and  adds,  looked  upon  as  obliged  to  consent  to  the 

that  the  pope  and  the  kings  concurred  in  alienation.  R. 


42 


OF    CORPOREAL    HEREDITAMENTS. 


once  dispose  of  them  ;(x)}  and  if  lands  were  granted  to  a  man  and  the 
heirs  of  his  body,  he  could  at  once  dispose  of  them  as  against  the  heirs 
of  his  body.  And  he  was  able,  the  moment  he  had  issue  born2 — that  is, 
the  moment  he  had  an  expectant  heir  of  the  kind  mentioned  in  the  gift — 
to  alienate  the  lands  as  against  the  lord  also  ;3  and  the  alienee  and  his  heirs 
had  a  right  to  hold,  not  only  during  the  existence  of  the  issue,  but  also 
-.  after  their  failure.(#)  The  original  intention  *of  such  gifts  was 
^  ■*  therefore  in  a  great  measure  defeated  ;  originally,  on  failure  of  the 
issue  the  lands  reverted  to  the  donor ;  but  now  nothing  was  requisite  but 
the  mere  birth  of  issue  to  give  the  donee  a  complete  power  of  disposition. 

The  mere  existence  of  an  expectant  heir  having  thus  grown  up  into 
a  reason  for  alienation,  the  barons  of  the  time  of  Edw.  I.  began  to  feel 
how  small  was  the  possibility  that  the  lands  which  they  had  granted  by 
conditional  gifts(z)  to  their  tenants  and  the  heirs  of  their  bodies  should 
ever  revert  to  themselves  again ;  whilst  at  the  same  time  they  perceived 
the  power  of  their  own  families  weakened  by  successive  alienations. 
To  remedy  these  evils,  and  to  keep  up  that  feudal  system  which  land- 

(x)  Perk.  sec.  667-670  ;  Co.  Litt.  43  a.  If  a  tenant  of  a  conditional  fee  had  a  right  of 
alienation  on  having  issue  born,  surely  a  tenant  in  fee  simple  must  have  had  at  least 
an  equal  right.     See,  however,  Co.  Litt.  43  a.  n.  (2)  j1  Wright's  Tenures  155,  note. 

(y)  Fitzherbert's  Abr.,  title  Formedon  62,65;  Britton  93  b,  94  a;  Plowd.  Comm. 
246;  2  Inst.  333;  Co.  Litt.  19  a  ;  Year  Book,  43  Edw.  III.  3  a,  pi.  13.  Earl  of  Stafford 
v.  Buckley,  2  Yes.  sen.  171. 

(z)  Ante,  p.  37. 


1  The  passage  from  Coke  Littleton  here 
quoted  has  often  been  controverted.  In 
Wright's  Tenures,  it  is  thus  referred  to: 
-The  Lord  Coke  (1  Inst.  43,  2  Id.  65,  66, 
501)  supposes  that  though  a  tenant  could 
not,  at  common  law,  alien  apart  to  hold  of 
the  lord,  because  the  lord's  seignory  was 
entire,  yet  the  tenant  might  have  made  a 
feoffment  of  the  whole  to  hold  of  the  lord, 
because  then  no  prejudice  ensued  ;  but  this 
supposition  is  so  contrary  to  the  feudal 
notions  of  alienation,  and  so  inconsistent 
with  any  learned  construction  of  the  statute 
quia  emptores  terrarum,  that  it  is  not  to  be 
credited.-'  Wright's  Tenures  155.  In 
Dalrymple  on  Feudal  Property  80,  it  is 
said:  "Lord  Coke  founds  his  opinion  on 
this,  that  in  the  latter  case  the  fee  was  not 
dismembered,  and  the  lord  received  the 
whole  of  his  services ;  but  the  mistake 
arises   from   attending   too   much   to   the 


interest  of  the  lord,  and  too  little  to  that 
of  the  heir."  R. 

2  He  might  also  have  aliened  the  lands 
before  issue  born,  but  the  effect  of  such 
alienation  would  only  have  been  to  exclude 
the  lord  during  the  life  of  the  tenant,  and 
during  that  of  the  issue,  if  such  issue  were 
subsequently  born,  while  if  the  alienation 
were  after  the  birth  of  issue,  its  effect  was 
complete.     Plowden  241.  R. 

3  The  effect  of  the  birth  of  issue  was  con- 
strued to  give  to  the  tenant  a  power  to  do 
three  things:  First,  to  alienate  the  land; 
secondly,  to  forfeit  it  for  treason  or  felony  ; 
and  thirdly,  to  encumber  it.  If,  however, 
the  tenant  should  die  without  issue,  or  the 
issue  should  fail  without  alienation  made 
by  either,  the  donor's  possibility  was 
changed  into  an  actual  reversion.  Nevil's 
Case,  7  Coke  34  b.  R. 


OF    AN    ESTATE    TAIL.  43 

lords  ever  held  in  high  esteem,  but  on  which  the  necessities  of  society 
ever  made  silent  yet  sure  encroaches,  it  was  enacted  in  the  reign  of 
Edw.  I.  by  the  famous  statute  De  Donis  Conditionalibus,(a) — and  no 
doubt  as  was  then  thought  finally  enacted. — that  the  will  of  the  donor, 
according  to  the  form  in  the  deed  of  gift  manifestly  expressed,  should 
be  from  thenceforth  observed  ;  so  that  they  to  whom  the  tenement  was 
given  should  have  no  power  to  alien  it,  whereby  it  should  fail  to  remain 
unto  their  own  issue,  after  their  death,  or  to  revert  unto  the  donor  or 
his  heirs,  if  issue  should  fail. 

Since  the  passing  of  this  statute,  an  estate  given  to  a  man  and  the 
heirs  of  his  body  has  been  always  called  an  estate  tail,  or,  more  prop- 
erly, an  estate  in  fee  tail  (feudum  talliatum).  The  word  fee  {feu- 
dum) anciently  meant  any  estate  feudally  held  of  another  person  \{b) 
*but  its  meaning  is  now  confined  to  estates  of  inheritance, — that  r**^ 
is,  to  estates  which  may  descend  to  heirs ;  so  that  a  fee  may  now 
be  said  to  mean  an  inheritance. (c)  The  word  tail  is  derived  from  the 
French  word  tailler,  to  cut,  the  inheritance  being,  by  the  statute  De 
Donis,  cut  down  and  confined  to  the  heirs  of  the  body  strictly  ;(d)  but, 
though  an  estate  tail  still  bears  a  name  indicative  of  a  restriction  of  the 
inheritance  from  any  interruption  in  its  course  of  perpetual  descent  from 
father  to  son,  we  shall  find  that  in  fact  the  right  to  establish  such  exclu- 
sive perpetual  descent  has  long  since  been  abolished.  When  the  statute 
began  to  operate,  the  inconvenience  of  the  strict  entails,  created  under 
its  authority,  became  sensibly  felt :  children,  it  is  said,  grew  disobe- 
dient when  they  knew  they  could  not  be  set  aside;  farmers  were  de- 
prived of  their  leases;  creditors  were  defrauded  of  their  debts;  and 
innumerable  latent  entails  were  produced  to  deprive  purchasers  of  the 
land  they  had  fairly  bought ;  treasons  also  were  encouraged,  as  estates 
tail  were  not  liable  to  forfeiture  longer  than  for  the  tenant's  life.(e) 
The  nobility,  however,  would  not  consent  to  a  repeal,  which  was  many 
times  attempted  by  the  commons,(/)  and  for  about  two  hundred  years 
the  statute  remained  in  force.1     At  length  the  power  of  alienation  was 

(a)  Stat.  13  Edw.  1.  c.  1,  called  also  the  Statute  of  Westminster  the  Second. 

(b)  Bracton,  lib.  4,  fol.  2G3  b,  par.  6;  Selden,  Tit.  of  Honour,  part  2,  c.  1,  s.  23,  p. 
332  ;  Wright's  Tenures,  p.  5. 

(c)  Litt.  s.  1  ;  Co.  Litt.  1  b,  2  a ;  Wright's  Tenures,  p.  149. 

(rf)  Litt.  s.  18;   Co.  Litt.  18  b,  327  a,  n.  (2)  ;  Wright's  Tenures  187;  2  Black.  Com. 
112. 

(e)  2  Black.  Com.  116.  (/)  Cruise  on  Recoveries. 

1  "  The  statute  Be  Donis,  by  removing     the   penalties   of  forfeiture,  swelled   them 
the   estates   of  the  greater  lords  beyond     to  a  height  which  was  as  unpalatable  to 


44  OF    CORPOREAL    HEREDITAMENTS. 

once  more  introduced,  by  means  of  a  quiet  decision  of  the  judges,  in  a 
case  which  occurred  in  the  twelfth  year  of  the  reign  of  King  Edward 
W  .(g)  In  this  case,  called  Taltarum's  Case,  the  destruction  of  an  entail 
was  accomplished  by  judicial  proceedings  collusively  taken  against  a 
tenant  in  tail  for  the  recovery  of  the  lands  entailed.  Such  proceedings 
were  not  at  that  period  quite  unknown  to  the  English  law,  for  the 
r*4^"l  mon^s  *had  previously  hit  upon  a  similar  device  for  the  purpose 
of  evading  the  statutes  of  Mortmain,  by  which  open  conveyances 
of  land  to  their  religious  houses  had  been  prohibited ;  and  this  device 
they  had  practiced  with  considerable  success  till  restrained  by  act  of  par- 
liament, (h)  In  the  case  of  which  we  are  now  speaking,  the  law  would 
not  allow  the  entail  to  be  destroyed  simply  by  the  recovery  of  the  lands 
entailed,  by  a  friendly  plaintiff  on  a  fictitious  title  ;  this  would  have  been 
too  barefaced ;  and  in  such  a  case  the  issue  of  the  tenant,  claiming 
under  the  gift  to  him  in  tail,  might  have  recovered  the  lands  by  means 
of  a  writ  of  formedon,(f)  so  called  because  they  claimed  per  formam  doni, 
according  to  the  form  of  the  gift,  which  the  statute  had  declared  should 
be  observed.  The  alienation  of  the  lands  entailed  was  effected  in  a  more 
circuitous  mode,  by  judicial  sanction  being  given  to  the  following  pro- 
ceedings, which  afterwards  came  into  frequent  and  open  use,  and  had 
some  little  show  of  justice  to  the  issue,  though  without  any  of  its  reality. 
The  tenant  in  tail,  on  the  collusive  action  being  brought,  was  allowed  to 
bring  into  Court  some  third  person,  presumed  to  have  been  the  original 
grantor  of  the  estate  tail.  The  tenant  then  alleged  that  this  third  person 
had  warranted  the  title ;  and  accordingly  begged  that  he  might  defend 
the  title  which  he  had  so  warranted.  This  third  person  was  accordingly 
called  on  ;  who,  in  fact,  had  had  nothing  to  do  with  the  matter  ;  but, 
being  a  party  in  the  scheme,  he  admitted  the  alleged  warranty,  and  then 
allowed  judgment  to  go  against  him  by  default.  Whereupon  judgment 
was  given  for  the  demandant  or  plaintiff,  to  recover  the  lands  from  the 

(ff)  Taltarum's  Case,  Year  Book,  12  Edw.  IV.  19. 

(h)  Statute  of  Westminster  the  Second,  13  Edw.  I.  e.  32  ;   2  Black.  Com.  271. 

(t)  Litt.  ss.  688,  690. 

the  crown  as  it  was  galling  to  the  trading  ward  the  First  to  Edward  the  Fourth, 
and  industrious  classes.  Nor  was  it  less  bills  were  introduced  to  repeal  the  statute 
distasteful  to  the  younger  sons,  who,  in  De  Donis,  but  the  power  of  the  great 
consequence  of  the  inalienable  nature  of  lords  resisted  these  attempts  with  success, 
the  estates  in  tail  which  the  statute  ere-  There  was  nothing  then  left  but  to  elude 
ated,  were  without  provision  from  their  the  statute  by  every  ingenuity  which  law- 
fathers,  the  tenants  in  tail.  All  of  these  yers  and  judges  could  devise."  Rawle  on 
saw  the  mischief  when  it  was  too  late.  Covenants  for  Title  5.  R. 
In  every  successive  parliament,  from  Ed- 


OF   AN   ESTATE   TAIL. 


45 


tenant  in  tail ;  and  the  tenant  in  tail  had  judgment  empowering  him  to 
recover  a   recompense   in    lands    of  equal  value   from    the   defaulter. 
*who  had  thus  cruelly  failed  in  defending  his  title,  (fc)     If  any    ^^ 
such  lands  had  been  recovered  under  the  judgment,  they  would 
have  been  held  by  the  tenant  for  an  estate  tail,  and  would  have  descended 
to  the  issue,  in  lieu  of  those  which  were  lost  by  the  warrantor's  default.(Z) 
But  the  defaulter,  on  whom  the  burden  was  thus  cast,  was  a  man  who 
had  no  lands  to  give,  some  man  of  straw,  who  could  easily  be  prevailed 
on  to  undertake  the  responsibility ;  and,  in  later  times,  the  crier  of  the 
Court  was  usually  employed.     So  that,  whilst  the  issue  had  still  the 
judgment  of  the   Court  in   their  favor,  unfortunately  for  them  it  was 
against  the  wrong  person  ;   and  virtually  their  right  was  defeated,  and 
the  estate  tail  was  said   to  be  barred.     Not  only  were  the  issue  barred 
of  their  right,  but  the  donor,  who  had  made  the  grant,  and  to  whom  the 
lands  were  to  revert  on  failure  of  issue,  had  his  reversion  barred  at  the 
same  time.(m)     So  also  all  estates  which  the  donor  might  have  given  to 
other  persons,  expectant  on   the  decease  of  the  tenant  in  tail  without 
issue  (and  which  estates  are  called  remainders  expectant  on  the  estate 
tail),  were   equally  barred.     The  demandant,  in  whose  favor  judgment 
was  given,  became  possessed  of  an  estate  in  fee  simple  in  the  lands;  an 
estate  the  largest  allowed  by  law,  and  bringing  with  it  the  fullest  powers 
of  alienation,  as  will  be  hereafter  explained:    and  the  demandant,  being 
a  friend  of  the  tenant  in  tail,  of  course  disposed  of  the  estate  in  fee  simple 
according  to  his  wishes.1 

Such  a  piece  of  solemn  juggling  could  not  long  have  held  its  ground,  had 
it  not  been  supported  by  its  substantial  benefit  to  the  community  ;2  but,  as 
it  was,  the  progress  of  events  tended  only  to  make  that  certain  which  at 
first  was  questionable  ;  and  proceedings  on  *the  principles  of  those 
above  related,  under  the  name  of  suffering  common  recoveries, 
maintained  their  ground,  and  long  continued  in  common  use  as  the  un- 
doubted privilege  of  every  tenant  in  tail.  The  right  to  suffer  a  common 
recovery  was  considered  as  the  inseparable  incident  of  an  estate  tail,  and 

(k)  Co.  Litt.  361  b ;  2  Black.  Com.  358.                                        (0  2  Black.  Com.  360. 
(m)  2  Black.  Com.  360  ;  Cruise  on  Recoveries  258. ^ 

TI^v^uffe^eTwith^tTnTc^n.  >  The  student  will  find  in  Maine  on  An- 
sideration,    or   any   use    declared,  enures  cient  Law,  ch.  2,  ^^l^°^f, 
only  to  the  use  of  him  who  suffers  it:   2  suggestive  discussion  of    <  legal  fie turns, 
Bl   Com.  363  ;  in  the  same  way  as  a  feoff-  and  the  part  they  have  played  in  the  de- 
ment without  consideration  enures  to  the  velopment  of  law. 
use  of  the  feoffor.     See  infra,  p.  158. 


47  OF    CORPOREAL    HEREDITAMENTS. 

every  attempt  to  restrain  this  right  was  hehl  voul.(«'jl     Complex,  how- 
ever," as  the  proceedings  above  related  may  appear,  the  ordinary  forms  of 
imon  recovery  in  later  times  were  more  complicated  still.     The  lands 
were  in  the  first  place  conveyed,  by  a  deed  called  the  recovery  deed,  to 
a  person  against  whom  the  action  was  to  be  brought,  and  who  was  called 
the  tenant°to  the prcecipe  or  writ.(o)     The  proceedings  then  took  place 
in  the  Court  of  Common  Pleas,  which  ha  1  a:,  exclusive  jurisdiction  in  all 
real  actions.    A  regular  writ  was  issued  against  the  tenant  to  the  pra 
by  another  person,  called  the  demandant;  the  tenant  in  tail  was  then 
required  bv  the  tenant  to  the  praecipe  to  warrant  his  title  according  to  a 
supposed  engagement  for  that  purpose;   this  was  called  vouching  the 
tenant  in  taitto  warranty.      The  tenant  in  tail,  on  being  vouched,  then 
vouched  to  warranty  in  the  same  way  the  crier  of  the  Court,  who  was 
called  the  common  vouchee.     The  demandant  then  craved  leave  to  im- 
parl or  confer  with  the  last  vouchee  in  private,  which  was  granted  by  the 
Court;  and  the  vouchee,  having  thus  got  out  of  Court,  did  not  return  : 
in  consequence  of  which,  judgment  was  given  in  the  manner  before  men- 
tioned, on  which  a  regular  writ  was  directed  to  the  sheriff  to  put  the  de- 
r+A<r\    mandant  into  "possession.,/')     The  proceedings,  as  may  be  sup- 
posed,  necessarily  passed  through  numerous  hands,  so  that  mis- 
takes were  not  unfrequently  made  and  great   expense  was   always  in- 
curred.!'/)    To  remedy  this  evil,  an  act  of  parliament'  r)  was  accordingly 
passed  in  the  year  1S33,  on  the  recommendation  of  the  commissioners  on 
the  law  of  real  property.     This  act,  which  in  the  wisdom  of  its  design, 
and  the  skill  of  its  execution,  is  quite  a  model  of  legislative  reform. 
abolished  the  whole  of  the  cumbrous  and  suspicious-looking  machinery 

Mary  Portingtons  Case.  10  Rep.  36;  Co.  Litl    824        Fearne  on  Contingent  Re-* 
mainders  260;   2  Black.  Com.  116. 

(o)  By  stat.  14  Geo.  II.  c.  20.  commonly  called  Mr.  Pigott's  Act.  it  was  sufficient  if 
the  .conveyance  to  the  tenant  to  the  praecipe  appeared  to  be  executed  before  the  end 
of  the  term  in  which  the  recovery  was  suffered  :  1  Prest.  Con.  61.  et  seq.  :  Goodright 
d.  Burton  v.  Rigby.  5  T.  Rep.  177.  Recoveries,  being  in  form  judicial  proceedings, 
could  only  be  suffered  in  term  time. 

(/>)  Cruise  on  Recoveries,  ch.  1,  p.  12. 

(q)  See  1st  Report  of  Real  Property  Commissioner;  25. 

An  act  for  the  abolition  of  fines  and  recoveries  and  for  the  substitution  of  more 
simple  modes  of  assurance."  Stat.  3  k  -4  Will.  IV.  c.  74.  drawn  by  Mr.  Brodie ;  1 
Hayes's  Conveyancing  155. 

1  And  the  power  to  suffer  a  common  re-  sance.  statute,  or  covenant.    See  the  argu- 

covery  has  been  repeatedly  held  to  be  "a  ment  of  Mr.  Knowles.  in  Taylor  v.  Horde, 

privilege  inseparably  incident  to  an  estate  1   Burrow  34 ;  Dewitt  v.  Eldred.  4  Watts 

tail."  and  which  cannot  be  restrained  by  &  Sergeant  421.                                          R. 
condition,    limitation,    custom,    recogni- 


01    AN    ESTATE    TAIL.  48 

of  common  recoveries.  It  has  substituted  in  their  place  a  simple  deed, 
executed  by  the  tenant  in  tail  and  enrolled  in  the  Chancery  Division  of 
the  High  Court  of  Justice:  s)  by  such  a  deed,  a  tenant  in  tail  in  pos- 
session -  now  enabled  to  dispose  of  the  lands  entailed  for  an  estate  in 
fee  simple;  thus  at  once  defeating  the  claims  of  his  issue,  and  of  all  per- 
sons having  anv  estates  in  remainder  or  reversion.1 

A  common  recovery  was  not,  in  later  times,  the  only  way  in  which  an 
estate  tail  might  be  barred.  There  was  another  assurance  as  effectual 
in  defeating  the  claim  of  the  issue,  though  it  was  inoperative  as  to  the 
remainders  and  reversion.  This  assurance  was  a  fine.  Fines  were  in 
themselves,  though  not  in  their  operation  on  estates  tail,  of  far  higher 
antiquity  than  common  recoveries. (t)  They  were  not,  like  recoveries, 
actions  at  law  carried  out  through  every  stage  of  the  process  ;  but  were 
fictitious  actions,  commenced  and  then  compromised  by  leave  of  the 
Court,  whereby  the  lands  in  question  were  acknowledged  to  be  the  right 
of  one  of  *the  parties.(w)  They  were  called  fines  from  their 
having  anciently  put  an  end,  as  well  to  the  pretended  suit,  as  to  L 
all  claims  not  made  within  a  year  and  a  day  afterwards. (x)  a  summary 
method  of  ending  all  disputes,  grounded  on  the  solemnity  and  pub- 
licity of  the  proceedings  as  taking  place  in  open  Court.2  This  power  of 
barring  future  claims  was  taken  from  fines  in  the  reign  of  Edward 
III.  \{y)  but  it  was  again  restored,  with  an  extension  however  of  the  time 

(*)  The  enrolment  must  be  within  six  calendar  months  after  the  execution,  sect.  41. 
See  sect.  74. 

(t)  Cruise  on  Fines,  chap.  1.  (w)  2  Black.  Com.  348. 

(x)  Stat.  18  Edw.  I.  stat.  4:  2  Black.  Com.  349,  354;  Co.  Litt.  121  a,  n.  (1). 

(y)  Stat.  34  Edw.  III.  c.  13,  a  curious  specimen  of  the  conciseness  of  ancient  acts  of 
parliament.     This  is  the  -whole  of  it :  '-Also  it  is  accorded,  that  the  plea  of  non-claim 


1  Instances  have  not  been  wanting,  on  dower  of  a  married  woman  could  only  be 
this  side  of  the  Atlantic,  of  the  suffering  passed  by  the  levying  of  a  fine,  in  order  to 
of  common  recoveries,  for  the  purpose  of  avoid  the  trouble  and  expense  of  which, 
barring  estates  tail  (see,  for  example,  Lyle  "  dower  uses."  as  they  were  termed,  were 
v.  Richards,  7  Serg.  &  Rawle  322)  ;  but  employed  by  conveyancers,  by  which  the 
in  general,  it  may  be  said  that  in  those  estate,  instead  of  being  conveyed  to  the 
States  in  which  entails  are  not  entirely  purchaser  and  his  heirs,  which  would  give 
abolished  by  statute,  the  tenant  in  tail  is  the  right  of  dower  therein  to  the  wife. 
(as  in  Pennsylvania  and  at  the  present  would  be  limited  to  such  uses  as  the  pur- 
day  in  England  i  enabled  to  bar  the  entail  chaser  should  appoint,  and  for  want  of 
by  a  simple  deed  acknowledged  in  open  appointment  to  himself  in  fee.  This 
court  for  that  purpose.  Purdons  Digest  clumsy  conveyancing  has  been  superseded 
619;  and  see  ante,  p.  34,  n.  1.                R.  by  recent  legislation.     See  post,  Ch.  XI. 

2  Until  quite  recently,  in  England,  the 


49  OF    CORPOREAL    HEREDITAMENTS. 

of  claim  to  five  years,  by  statutes  of  Richard  TII.(z)  and  Henry  VII.  ;(a) 
by  which  statutes  also  provision  was  made  for  the  open  proclamation  of 
all  fines  several  times  in  Court,  during  which  proclamation  all  pleas 
were  to  cease  ;  and  in  order  that  a  fine  might  operate  as  a  bar  after  non- 
claim  for  five  years,  it  was  necessary  that  it  should  be  levied,  as  it  was 
said,  with  proclamations.  But  now,  by  a  statute  of  the  present  reign,(6) 
all  fines  heretofore  levied  in  the  Court  of  Common  Pleas  shall  be  con- 
clusively deemed  to  have  been  levied  with  proclamations,  and  shall  have 
the  force  and  effect  of  fines  with  proclamations.  A  judicial  construction 
of  the  statute  of  Henry  VII., (c)  quite  apart,  as  it  should  seem,  from  its 
real  intention,(c?)  gave  to  a  fine  by  a  tenant  in  tail  the  force  of  a  bar  to 
his  issue  after  non-claim  by  them  for  five  years  after  the  fine ;  and  this 
r*cn-|  construction  was  confirmed  by  a  statute  *of  the  reign  of  Henry 
^  VIII.,  which  made  the  bar  immediate.(e)     Since  this  time  the 

effect  of  fines  in  barring  an  entail,  so  far  as  the  issue  were  concerned, 
remained  unquestioned  till  their  abolition ;  which  took  place  at  the  same 
time,  and  by  the  same  act  of  parliament^/)  as  the  abolition  of  common 
recoveries.  A  deed  enrolled  in  the  Chancery  Division  of  the  High  Court 
has  now  been  substituted,  as  well  for  a  fine  as  for  a  common  recovery. 

Although  strict  and  continuous  entails  have  long  been  virtually  abol- 
ished, their  remembrance  seems  still  to  linger  in  many  country  places, 
where  the  notion  of  heir  land,  that  must  perpetually  descend  from  father 
to  son,  is  still  to  be  met  with.  It  is  needless  to  say  that  such  a  notion  is 
quite  incorrect.  In  families  where  the  estates  are  kept  up  from  one  gen- 
eration to  another,  settlements  are  made  every  few  years  for  this  purpose  ; 
thus  in  the  event  of  a  marriage,  a  life  estate  merely  is  given  to  the  hus- 
band ;  the  wife  has  an  allowance  for  pin  money  during  the  marriage,  and 
a  rent-charge  or  annuity  by  way  of  jointure  for  her  life,  in  case  she 
should  survive  her  husband.  Subject  to  this  jointure,  and  to  the  payment 
of  such  sums  as  may  be  agreed  on  for  the  portions  of  the  daughters  and 
younger  sons  of  the  marriage,  the  eldest  son  ivho  may  be  born  of  the 

of  fines,  which  from  henceforth  shall  be  levied,  shall  not  be  taken  or  holden  for  any 
bar  in  time  to  come." 

(z)   1  Rich.  III.  c.  7.  (a)  4  Hen.  VII.  c.  24;  see  also  stat.  31  Eliz.  c.  2. 

(b)  Stat.  11  &  12  Vict.  c.Yo. 

(c)  Bro.  Abr.  tit.  Fine,  pi.  1 ;  Dyer  3  a;  Cruise  on  Fines  173. 

jd)  4  Reeves's  Hist.  Eng.  Law  135,  138;  1  Hallam's  Const.  Hist.  14,  17.  The  deep 
designs  attributed  by  Blackstone  (2  Black.  Com.  118,  354)  and  some  others  to  Henry 
VII.  in  procuring  the  passing  of  this  statute  are  shown  by  the  above  writers  to  have 
most  probably  had  no  existence. 

(e)  32  Hen.  VIII.  c.  36.  (/)  3  &  4  Will   IV.  c.  74. 


OF   AN    ESTATE   TAIL.  50 

marriage  is  made  by  the  settlement  tenant  in  tail.     In  case  of  his  decease 
without  issue,  it  is  provided  that   the  second   son,  and  then  the  third, 
should  in  like  manner  be  tenant  in  tail ;  and  so  on  to  the  others ;  and  in 
default  of  sons,  the  estate  is  usually  given  to  the  daughters.     By  this 
means   the  estate  is  tied  up  till  some  tenant  in  tail   attains  the   age  of 
twenty-one  years  :  when  he  is  able,  with  the  consent  of  the  father,  who  is 
tenant  for  life,  to  bar  the  entail  with  all  the  remainder.     Dominion  is 
thus  again  acquired  over  the  property,  *which  dominion  is  usu-    i-*^-! 
ally  exercised  in  a  resettlement  on  the  next  generation  ;  and  thus 
the  property  is  preserved  in  the  family.     Primogeniture,  therefore,  as 
it  obtains  among  the  landed  gentry  of  England,  is  a  custom  only,  and  not 
a  right;1  though  there  can  be  no  doubt  that  the  custom  has  originated  in 
the  right,  which  was  enjoyed  by  the  eldest  son,  as  heir  to  his  father,  in 
those  days  when  estates  tail  could  not  be  barred.     Primogeniture,  as  a 
custom,  has  been  the  subject  of  much  remark. (g)     Where  family  honors 
or  family  estates  are  to  be  preserved,  some  such  device  appears  necessary. 
But,  in  other  cases,  strict  settlements,  of  the  kind  referred  to,  seem  fitted 
rather  to  maintain  the  posthumous  pride  of  present  owners,  than  the  wel- 
fare of  future  generations.     The  policy  of  the  law  is  now  in  favor  of  the 
free  disposition  of  all  kinds  of  property ;  and  as  it  allows  estates  tail  to 
be  barred,  so  it  will  not  permit  the  object  of  an  entail  to  be  accomplished 
by  other  means,  any  further  than  can  be  done  by  giving  estates  to  the 
unborn  children  of  living  persons.     Thus  an  estate  given  to  the  children 
of  an  unborn  child  would  be  absolutely  void. (A)     The  desire  of  individuals 
to  keep  up  their  name  and  memory  has  often  been  opposed  to  this  rule  of 
law,  and  many  shifts  and  devices  have  from  time  to  time  been  tried  to 
keep  up  a  perpetual  entail,  or  something  that  might  answer  the  same 
end.(z')     But  such  contrivances  have  invariably  been  defeated ;  and  no 
plan  can  be  now  adopted  by  which  lands  can  with  certainty  be  tied  up, 
or  fixed  as  to  their  future  destination,  for  a  longer  period  than  the  lives 

(ff)  See  2  Adam  Smith's  Wealth  of  Nations  181,  M'Culloch's  edition  ;  and  M'Culloch's 
n.  xix.,  vol.  4,  p.  441.  See  also  Traites  de  Legislation  Civile  et  Penale,  ouvrage  extrait 
des  Manuscrits  de  Bentham,  par  Dumont,  torn.  1,  p.  307,  a  work  of  profound  philosophy, 
except  where  a  hardened  skepticism  makes  it  shallow. 

(A)  Hay  v.  Earl  of  Coventry,  3  T.  Rep.  86  ;  Brundell  v.  Elwes,  1  East  452. 

(i)  See  Fearne's  Contingent  Remainders  253,  et  seq. ;  Mainwaring  v.  Baxter,  5  Ves. 
458. 


i  That  is  to  say,  the  father  can,  in  his  in  cases  of  intestacy,  the  estate  will  descend 
lifetime,  convey  away  his  estate  from  his  to  the  eldest  son,  as  will  be  shown  in 
eldest  son,  or  devise  it  to  any  one  else  ;  but     Chapter  IV.  R- 


52  OF    CORPOREAL    HEREDITAMENTS. 

r^r^-.    of  existing  *persons  and  a  term  of  twenty-one  years  after  their 

I       Oli 

decease.^)1 

Whenever  an  estate  tail  is  not  an  estate  in  possession,  but  is  pre- 
ceded by  a  life  interest  to  be  enjoyed  by  some  other  person  prior  to  the 
possession  of  the  lands  by  the  tenant  in  tail,  the  power  of  such  tenant  in 
tail  to  acquire  an  estate  in  fee  simple  in  remainder  expectant  on  the 
decease  of  the  tenant  for  life  is  subject  to  some  limitation.  In  the  time 
when  an  estate  tail,  together  with  the  reversion,  could  only  be  barred 
bv  a  recovery,  it  was  absolutely  necessary  that  the  first  tenant  for  life, 
who  had  the  possession  of  the  lands,  should  concur  in  the  proceedings ; 
for  no  recovery  could  be  suifered,  unless  on  a  feigned  action  brought 
against  the  feudal  holder  of  the  possession. (I)  This  technical  rule  of  law 
was  also  a  valuable  check  on  the  tenant  in  tail  under  every  ordinary 
settlement  of  landed  property  ;  for,  when  the  eldest  son  (who,  as  we 
have  seen,  is  usually  made  tenant  in  tail)  came  of  age,  he  found  that, 
before  he  could  acquire  the  dominion  expectant  on  the  decease  of  his 
father,  the  tenant  for  life,  he  must  obtain  from  his  father  consent  for  the 
purpose.  Opportunity  was  thus  given  for  providing  that  no  ill  use 
should  be  made  of  the  property.(m)  When  recoveries  were  abolished,  the 
consent  formerly  required  was  accordingly  still  preserved,  with  some  little 
modification.  The  act  abolishing  recoveries  has  established  the  office  of 
protector,  which  almost  always  exists  during  the  continuance  of  such  estates 
under  the  settlement  as  may  precede  an  estate  tail.2  And  the  consent  of 
r^91  the  protector  is  required  to  be  given,  either  *by  the  same  deed  by 
*-  °-'  which  the  entail  is  barred,  or  by  a  separate  deed,  to  be  executed  on 
or  before  the  day  of  the  execution  of  the  former,  and  to  be  also  enrolled 
in  the  Chancery  Division  of  the  High  Court,  at  or  previously  to  the  time 
of  the  enrolment  of  the  deed  which  bars  the  entail.(w)  Without  such  con- 
sent, the  remainders  and  reversion  cannot  be  barred. (o)  In  ordinary  cases 
the  protector  is  the  first  tenant  for  life  under  the  settlement,  in  analogy  to 
the  old  law  ;(p)  but  a  power  is  given  by  the  act,  to  any  person  entailing 

(k)  Fearne's  Contingent  Remainders  430,  et  seq.     The  period  of  gestation  is  also  in- 
cluded, if  gestation  exist  :  Cadell  v.  Palmer,  7  Bligh  N.  S.  202. 
(I)  Cruise  on  Recoveries  21.     See,  however,  stat.  14  Geo.  II.  c.  20. 
(m)  See  First  Report  of  Real  Property  Commissioners,  p.  32. 

(n)  Stat.  3  &  4  Will  IV.  c.  74,  ss.  42-47.  (o)  Sects.  34,  35. 

(p)  Sect.  22. 

1  The    law,  as   thus   expressed,  applies         2  The  student  may  refer  with  profit  to 

with     equal    force    on    this    side  of    the  the  remarks  of  Sir  E.  Sugden  (now  Lord 

Atlantic.  R.  St.  Leonards)  on  this  act,  in  2  Sugden  on 

See  infra,  pp.  274,  318.  Vendors  300.  R. 


OF   AN    ESTATE    TAIL.  53 

lands,  to  appoint,  in  the  place  of  the  tenant  for  life,  any  number  of  per- 
sons, not  exceeding  three,  to  be  together  protector  of  the  settlement 
during  the  continuance  of  the  preceding  estates  ;(q)  and,  in  such  a  case, 
the  consent  of  such  persons  only  need  be  obtained  in  order  to  effect  a 
complete  bar  to  the  estate  tail,  and  the  remainders  and  reversion.  The 
protector  is  under  no  restraint  in  giving  or  withholding  his  consent,  but 
is  left  entirely  to  his  own  discretion.(r)  If  he  should  refuse  to  consent, 
the  tenant  in  tail  may  still  bar  his  own  issue;  as  he  might  have  done 
before  the  act  by  levying  a  fine ;  but  he  cannot  bar  estates  in  remainder 
or  reversion.  The  consequence  of  such  a  limited  bar  is  that  the  tenant 
acquires  a  disposable  estate  in  the  land  for  so  long  as  he  has  any  issue 
or  descendants  living,  and  no  longer;  that  is,  so  long  as  the  estate  tail 
would  have  lasted  had  no  bar  been  placed  on  it.  This  is  called  a  base 
fee.  But,  when  his  issue  fail,  the  persons  having  estates  in  remainder 
or  reversion  become  entitled.  When  the  estate  tail  is  in  possession,  that 
is,  when  there  is  no  previous  estate  for  life  or  otherwise,  there  can  very 
seldom  be  any  protector,(s)  and  the  tenant  in  tail  may  at  any  time,  by 
deed  duly  enrolled,  bar  the  entail,  remainders,  and*  reversion  at. 
his  own  pleasure.  And  where  a  previous  estate  for  life  exists,  it  *  ■* 
does  not  confer  the  office  of  protector,  unless  it  be  created  by  the  same 
settlement  which  created  the  estate  tail ;  so  that  a  tenant  in  tail  in  re- 
mainder expectant  on  an  estate  for  life,  created  by  some  prior  deed  or 
will,  may  bar  the  entail,  remainders,  and  reversion,  without  the  consent 
of  the  tenant  for  life  under  such  prior  deed  or  m\\.(t) 

The  above-mentioned  right  of  a  tenant  in  tail  to  bar  the  entail  is  sub- 
ject to  a  few  exceptions  ;  which,  though  of  not  very  frequent  occurrence, 
it  may  be  as  well  to  mention.  And,  first,  estates  tail  granted  by  the 
crown  as  the  reward  for  public  services  cannot  be  barred  so  long  as  the 
reversion  continues  in  the  crown.  This  restriction  was  imposed  by  an 
act  of  parliament  of  the  reign  of  Henry  VIII.,(w)  and  it  has  been  con- 
tinued by  the  act  by  which  fines  and  recoveries  were  abolished, (#)  and 
by  the  act  to  facilitate  leases  and  sales  of  settled  estates,(#)  so  far  as 
regards  any  sale  or  lease  beyond  the  term  of  twenty-one  years.  There 
are  also  some  cases  in  which  entails  have  been  created  by  particular  acts 
of  parliament,  and  cannot  be  barred. 

(?)  Sect.  32.  (r)  Sects.  36,  37.       " 

(«)  See  Sugd.  Vend,  and  Pur.  593,  11th  ed. 

(t)   Berrington  v.  Scott,  Exch.  18  January,  1875  ;  32  L.  T.,  N.  S.  125. 
(«)  Stat.  34  &  35  Hen.  VIII.  c.  20  ;  Cruise  on  Recoveries  318. 
(x)  Stat.  3  &  4  Will.  IV.  c.  74,  s.  18  ;  Duke  of  Grafton's  Case,  5  New  Cases  27. 
(y)  Stats.  19  &  20  Vict.  c.  120,  s.  42  ;  40  &  41  Vict.  c.  18,  s.  55. 
4 


54  OF    CORPOREAL    HEREDITAMENTS. 

Again,  an  estate  tail  cannot  be  barred  by  any  person  who  is  tenant  in 
tail  after  possibility  of  issue  extinct.  This  can  only  happen  where  a 
person  is  tenant  in  special  tail.  For  instance,  if  an  estate  be  given  to  a 
man  and  the  heirs  of  his  body  by  his  present  wife ;  in  this  case,  if  the 
wife  should  die  without  issue,  he  would  become  tenant  in  tail  after  possi- 
bility of  issue  extinct  ;(z)  the  possibility  of  his  having  issue  who  could 
r^r-,  ^inherit  the  estate  tail  would  have  become  extinct  on  the  death 
of  his  wife.  A  tenancy  of  this  kind  can  never  arise  in  an  ordi- 
nary estate  in  tail  general  or  tail  male  ;  for,  so  long  as  a  person  lives, 
the  law  considers  that  the  possibility  of  issue  continues,  however  improb- 
able it  may  be  from  the  great  age  of  the  party. (a)1  Tenants  in  tail 
after  possibility  of  issue  extinct  were  prohibited  from  suifering  common 
recoveries  by  a  statute  of  the  reign  of  Elizabeth, (b)  and  a  similar  prohi- 
bition is  contained  in  the  Act  for  the  abolition  of  Fines  and  Recoveries. (c) 
But,  as  we  have  before  remarked,(eZ)  tenancies  in  special  tail  are  not  now 
common.  In  modern  times,  when  it.  is  intended  to  make  a  provision  for 
the  children  of  a  particular  marriage,  estates  are  given  directly  to  the 
unborn  children,  which  take  effect  as  they  come  into  existence ;  whereas 
in  ancient  times,  as  we  shall  hereafter  see,(e)  it  was  not  lawful  to  give 
any  estate  directly  to  an  unborn  child. 

The  last  exception  is  one  that  can  only  arise  in  the  case  of  grants  and 
settlements  made  before  the  passing  of  the  Act  for  the  Abolition  of  Fines 
and  Recoveries ;  for  the  future  it  has  been  abolished.  It  relates  to 
women  who  are  tenants  in  tail  of  lands  of  their  husbands,  or  lands  given 
by  any  of  his  ancestors.  After  the  decease  of  the  husband,  a  woman  so 
tenant  in  tail  ex  provisions  viri  was  prohibited  by  an  old  statute  (/)  from 
suffering  a  recovery  without  the  assent,  recorded  or  enrolled,  of  the  heirs 
next  inheritable  to  her,  or  of  him  or  them  that  next  after  her  death 
should  have  an  estate  of  inheritance  (that  is,  in  tail  or  in  fee  simple)  in 
p r»-|  the  lands  :  she  was  also  prohibited  from  levying  a  *3ne  under 
the  same  circumstances  by  the  statute  which  confirmed  fines  to 
their  force  in  other  cases. (g)     This  kind  of  tenancy  in  tail  very  rarely 

(z)  Litt.  sects.  32,  33;  2  Black.  Com.  124. 

(a)  Litt.  sect.  34  ;  Co.  Litt.  40  a  ;  2  Black.  Cora.  125  ;  Jee  v.  Audley,  1  Cox  324. 

(b)  14  Eliz.  c.  8.  (c)  3  &  4  Will.  IV.  c.  74,  s.  18. 

(d)  Ante,  p.  35.  (g)  See  the  Chapter  on  a  Contingent  Remainder. 

(/)   11  Hen.  VII.  c.  20.  (g)  Stat.  32  Hen.  VIII.  c.  36,  s.  2. 


1  The  same  doctrine  (as  to  possibility  of  lasts  the  law  presumes  the  possibility  of 
issue  at  any  age,  however  great)  applies  to  issue.  Jee  v.  Audley,  supra;  List  v.  Rod- 
other  cases  besides  estates  tail.     While  life     ney,  2  Norris  483. 


OF   AN    ESTATE   TAIL.  56 

occurs  in  modern  practice,  having  been  superseded  by  the  settlements 
now  usually  made  on  the  unborn  children  of  the  marriage. 

It  is  important  to  observe  that  an  estate  tail  can  only  be  barred  by 
an  actual  conveyance  by  deed,  duly  enrolled  according  to  the  act  of 
parliament  by  which  a  deed  was  substituted  for  a  common  recovery  or 
fine.(^)  Thus  every  attempt  by  a  tenant  in  tail  to  leave  the  lands  entailed 
by  his  will,(i)  and  every  contract  to  sell  them,  not  completed  in  his  life- 
time by  the  proper  bar,(/)  will  be  null  and  void  as  against  his  issue 
claiming  under  the  entail,  or  as  against  the  remaindermen  or  rever- 
sioners (that  is,  the  owners  of  estates  in  remainder  or  reversion)  should 
there  be  no  such  issue  left. 

A  tenant  in  tail  may  cut  down  timber  for  his  own  benefit,  and  com- 
mit what  waste  he  pleases,  without  the  necessity  of  barring  the  entail  for 
that  purpose. (k)  A  tenant  in  tail  was  moreover  empowered  by  a  statute 
of  Henry  VIII. (I)  to  make  leases,  under  certain,  restrictions,  of  such  of 
the  lands  entailed  as  had  been  most  commonly  let  to  farm  for  twenty 
years  before ;  but  such  leases  were  not  to  exceed  twenty-one  years,  or 
three  lives,  from  the  day  of  the  making  thereof,  and  the  accustomed 
yearly  rent  was  to  be  reserved.  This  power  was  however  of  little  use ; 
for  leases  under  the  statute,  though  binding  on  the  issue,  were  not  bind- 
ing *on  the  remainderman  or  reversioner,(m)  and  consequently  [-#^7-1 
had  not  that  certainty  of  enjoyment  which  is  the  great  induce- 
ment to  the  outlay  of  capital,  and  the  consequent  improvement  of  landed 
property  ;  and  this  statute  has  been  recently  repealed. (n)  The  Act  for 
the  Abolition  of  Fines  and  Recoveries  now  empowers  every  tenant  in  tail 
in  possession  to  make  leases  by  deed,  without  the  necessity  of  enrolment, 
for  any  term  not  exceeding  twenty-one  years,  to  commence  from  the  date 
of  the  lease,  or  from  any  time  not  exceeding  twelve  calendar  months 
from  the  date  of  the  lease,  where  a  rent  shall  be  thereby  reserved,  which 
at  the  time  of  granting  such  lease  shall  be  a  rack-rent,  or  not  less  than 
five-sixth  parts  of  a  rack-rent.(o) 

(A)  Peacock  v.  Eastland,  M.  R.,  L.  R.  10  Eq.  17. 

(i)   Cro.  Eliz.  805  ;  Co.  Litt.  Ilia;  stat.  3  &  4  Will.  IV.  c.  74,  s.  40. 
(/)  Bac.  Abr.  tit.  Estate  in  Tail  (D)  ;  stat.  3  &  4  Will.  IV.  c.  74,  s.  40. 
(fc)   Co.  Litt.  224  a;   2  Black.  Com.  115. 

(I)  Stat.  32  Hen.  VIII.  c.  28  ;  Co.  Litt.  44  a  ;  Bac.  Abr.  tit.  Leases  and  Terms  for 
Years  (D)  2. 

(m)  Co.  Litt.  45  b  ;  2  Black.  Com.  319. 

(n)  Stat.  19  &  20  Vict.  c.  120,  s.  35. 

(0)  Stat.  3  &  4  Will.  IV.  c.  74/ss.  15,  40,  41. 


57  OF   CORPOREAL    HEREDITAMENTS. 

It  has  been  observed  that,  in  ancient  times,  estates  tail  were  not  sub- 
ject to  forfeiture  for  high  treason  beyond  the  life  of  the  tenant  in  ta\\.{p) 
This  privilege  they  were  deprived  of  by  an  act  of  parliament  passed  in 
the  reign  of  Henry  VIII., (q)  by  which  all  estates  of  inheritance  (under 
which  general  words  estates  tail  were  covertly  included)  were  declared 
to  be  forfeited  to  the  king  upon  any  conviction  of  high  treason. (r)  But 
the  act  "to  abolish  forfeitures  for  treason  and  felony  and  to  otherwise 
amend  the  law  relating  thereto  "(*)  now  provides,(f)  that  after  the  pass- 
ing of  that  act,  which  took  place  on  the  4th  July,  1870,  no  confession, 
verdict,  inquest,  conviction,  or  judgment  of  or  for  any  treason  or  felony 
or  felo  de  se  shall  cause  any  attainder  or  corruption  of  blood  or  any  for- 
feiture or  escheat.  The  attainder  of  the  ancestor  did  not  of  itself  pre- 
vent  the  descent  of  *an  estate  tail  to  his  issue,  as  they  claimed 
■-  J  from  the  original  donor,  per  formam  doni ;(u)  and,  therefore,  on 
attainder  for  murder,  an  estate  tail  still  descended  to  the  issue.  By 
virtue  of  another  statute  of  the  reign  of  Henry  VIII., (a-)  estates  tail  are 
charged,  in  the  hands  of  the  heir,  with  debts  due  from  his  ancestor  to 
the  crown,  by  judgment,  recognizance,  obligation,  or  other  specialty, 
although  the  heir  shall  not  be  comprised  therein.  And  all  arrears  and 
debts  due  to  the  crown,  by  accountants  to  the  crown,  whose  yearly  or 
total  receipts  exceed  three  hundred  pounds,  were,  by  a  later  statute,  of 
the  reign  of  Elizabeth, (y)  placed  on  the  same  footing.  But  estates  tail, 
if  suffered  to  descend,  were  not  subject  to  the  debts  of  the  deceased  tenant 
owing  to  private  individuals.^)  By  an  act  passed  at  the  commencement 
of  her  present  Majesty's  reign,  debts,  for  the  payment  of  which  any 
judgment,  decree,  order,  or  rule  had  been  given  or  made  by  any  court  of 
law  or  equity,  were  made  binding  on  the  lands  of  the  debtor,  as  against 
the  issue  of  his  body,  and  also  as  against  all  other  persons  whom  he 
might,  without  the  assent  of  any  other  person,  cut  off  and  debar  from 
any  remainder  or  re  version,  (a)  But  a  more  recent  statute  has  enacted 
that  no  such  judgment,  decree,  order,  or  rule  to  be  entered  up  after  the 
29th  of  July,  18(54,  the  date  of  the  act,  shall  affect  any  land  until  such 
land  shall  have  been  actually  delivered  in  execution. (b)  An  estate  tail 
may  also  be  barred  and  disposed  of  on  the  bankruptcy  of  a  tenant  in 

(p)  Ante,  p.  44. 

(q)  26  Hen.  VIII.  c.  13,  s.  5  ;  see  also  5  &  6  Edw.  VI.  c.  11,  s.  9. 

(r)  2  Black.  Com.  118.  (s)  Stat.  33  &  34  Vict.  c.  23. 

(t)  Sect.  1.  (w)  3  Rep.  10  ;  8  Rep.  165  b ;  Cro.  Eliz    28. 

(x)  Stat.  33  Hen.  VIII.  c.  39,  s.  75. 

(y)  Stat.  13  Eliz.  c.  4  ;  and  see  14  Eliz.  c.  7  ;    25  Geo.  III.  c.  35. 

(z)  Com.  Dig   Estates  (B)  22.  (a)  Stat.  1  &  2  Vict.  c.  110,  ss.  13,  18. 

(&)  Stat.  27  &  28  Vict.  c.  112,  ss.  1,  2. 


OF    AN    ESTATE    TAIL.  58 

tail,  for  the  benefit  of  his  creditors,  to  the  same  extent  as  he  might  have 
barred  or  disposed  of  it  for  his  own  benefit,  (c) 

*In  addition  to  the  liabilities  above  mentioned  are  the  rights  rs|cf.Q, 
which  the  marriage  of  a  tenant  in  tail  confers  on  the  wife,  if  the  ■-  J 
tenant  be  a  man,  or  on  the  husband,  if  the  tenant  be  a  woman ;  an 
account  of  which  will  be  contained  in  a  future  chapter  on  the  relation 
of  husband  and  wife.  But,  subject  to  these  rights  and  liabilities,  an 
estate  tail,  if  not  duly  barred,  will  descend  to  the  issue  of  the  donee  in 
due  course  of  law  ;  all  of  whom  will  be  necessarily  tenants  in  tail,  and 
will  enjoy  the  same  powers  of  disposition  as  their  ancestor,  the  original 
donee  in  tail.  The  course  of  descent  of  an  estate  tail  is  similar,  so  far 
as  it  goes,  to  that  of  an  estate  in  fee  simple,  an  explanation  of  which  the 
reader  will  find  in  the  fourth  chapter. 

If  an  estate  pur  autre  vie  should  be  given  to  a  person  and  the  heirs  of 
his  body,  a  quasi  entail,  as  it  is  called,  will  be  created,  and  the  estate 
will  descend,  during  its  continuance,  in  the  same  manner  as  an  ordinary 
estate  tail.  But  the  owner  of  such  an  estate  in  possession  may  bar  his 
issue,  and  all  remainders,  by  an  ordinary  deed  of  conveyance,^)  without 
any  enrolment  under  the  statute  for  the  abolition  of  fines  and  recoveries. 
If  the  estate  tail  be  in  remainder  expectant  on  an  estate  for  life,  the  con- 
currence of  the  tenant  for  life  is  necessary  to  enable  the  tenant  in  tail  to 
defeat  the  subsequent  remainders. (e) 

(c)  Stat.  3  &  4  Will.  IV.  c.  74,  ss.  56-73  ;  32  &  33  Vict.  c.  71,  s.  25,  sub-section  (4). 

(d)  Fearne,  Coat.  Rem.  495,  et  seq. 

(e)  Allen  v.  Allen,  2  Dru.  &  War.  307,  324,  332  ;  Edwards  v.  Champion,  3  De  Gex, 
M.  &  G.  202. 


[*60]  *CHAPTER  III. 

OF   AN    ESTATE   IN    FEE    SIMPLE. 

An  estate  in  fee  simple  (feudum  simplex)  is  the  greatest  estate  or 
interest  which  the  law  of  England  allows  any  person  to  possess  in  landed 
property. (a)  A  tenant  in  fee  simple  is  he  that  holds  lands  or  tenements 
to  him  and  his  heirs  ;(b)  so  that  the  estate  is  descendible,  not  merely  to 
the  heirs  of  his  body,  but  to  collateral  relations,  according  to  the  rules 
and  canons  of  descent.  An  estate  in  fee  simple  is  of  course  an  estate 
of  freehold,  being  a  larger  estate  than  either  an  estate  for  life  or  in 
tail.(c) 

It  is  not,  however,  the  mere  descent  of  an  estate  in  fee  simple  to  col- 
lateral heirs,  that  has  given  to  this  estate  its  present  value  and  import- 
ance: the  unfettered  right  of  alienation,  which  is  now  inseparably  inci- 
dent to  this  estate,  is  by  far  its  most  valuable  quality.  This  right  has 
been  of  gradual  growth  :  for,  as  we  have  seen,(d)  estates  were  at  first 
inalienable  by  tenants,  without  their  lord's  consent ;  and  the  heir  did  not 
derive  his  title  so  much  from  his  ancestor  as  from  the  lord,  who,  when 
he  gave  to  the  ancestor,  gave  also  to  his  heirs.  In  process  of  time,  how- 
ever, the  ancestor  acquired,  as  we  have  already  seen,(e)  the  right,  first, 
of  disappointing  the  expectations  of  his  heir,  and  then  of  defeating  the 
[-*£.. -,  interests  of  his  lord.  The  alienations  *by  which  these  results 
were  effected  were,  as  will  be  remembered,  either  the  subinfeuda- 
tion of  parts  of  the  land,  to  be  holden  of  the  grantor,  or  the  conveyance 
of  the  whole,  to  be  holden  of  the  superior  lord.  It  was  impossible  to 
make  a  grant  of  part  of  the  lands  to  be  holden  of  the  superior  lord  with- 
out his  consent ;  for,  the  services  reserved  on  any  grant  were  considered 
as  entire  and  indivisible  in  their  nature.(/)  The  tenant,  consequently, 
if  he  wished  to  dispose  of  part  of  his  lands,  was  obliged  to  create  a  tenure 
between  his  grantee  and  himself,  by  reserving  to  himself  and  his  heirs 
such  services  as  would  remunerate  him  for  the  services  which  he  himself 
was  liable  to  render  to  his  superior  lord.  In  this  manner  the  tenant 
became  a  lord  in  his  turn  ;  and  the  method  which  the  tenants  were  thus 
obliged  to  adopt,  when  alienating  part  of  their  lands,  was  usually  resorted 

(a)  Litt.  s.  11.  (i)  Litt.  s.  1.  (c)  Ante,  pp.  22,  36. 

(d)  Ante,  pp.  17,  18.  (e)  Ante,  pp.  38-42.  (/)  Co.  Litt.  43  a. 


OF    AN    ESTATE    IN    FEE    SIMPLE.  61 

to  by  choice,  whenever  they  had  occasion  to  part  with  the  whole ;  for 
the  immediate  lord  of  the  holder  of  any  lands  had  advantages  of  a  feudal 
nature,^)  which  did  not  belong  to  the  superior  lord,  when  any  mesne 
lordship  intervened;    it  was  therefore  desirable  for  every  feudal  lord 
that  the  possession  of  the  lands  should  always  be  holden  by  his  own 
immediate  tenants.     The  barons  at  the  time  of  Edward  I.  accordingly, 
perceiving  that,  by  the  continual  subinfeudations  of  their  tenants,  then- 
privileges5  as  superior  lords  were  gradually  encroached  on,  proceeded  to 
procure  an  enactment  in  their  own  favor  with  respect  to  estates  in  fee 
simple,  as  they  had  then  already  done  with  regard  to  estates  tail.(A) 
They  did  not,  however,  in  this  case  attempt  to  restrain  the  practice  of 
alienation  altogether,  but  simply  procured  a  prohibition  of  the  practice 
of  subinfeudation  ;    and  at  the  same  time  obtained,  for  their  tenants, 
facility  of  ^alienation  of  parts  of  their  lands,  to  be  holden  of  the    j-*62] 
chief  lords. 

The  statute  by  which  these  objects  were  effected  is  known  by  the  name 
of  the  statute  of  Quia  emptores  ;{i)  so  called  from  the  words  with  which 
it  commences.  It  enacts  that  from  thenceforth  it  shall  be  lawful  to 
every  freeman  to  sell  at  his  own  pleasure  his  lands  and  tenements  or  part 
thereof,  so  nevertheless  that  the  feoffee  (or  purchaser)  shall  hold  the  same 
lands  or  tenements  of  the  same  chief  lord  of  the  fee,  and  by  the  same 
services  and  customs,  as  his  feoffor  held  them  before.  And  it  further 
enacts(&)  that  if  he  sell  any  part  of  such  his  lands  or  tenements  to  any 
person,  the  feoffee  shall  hold  that  part  immediately  of  the  chief  lord,  and 
shall  be  forthwith  charged. with  so  much  service  as  pertaineth,  or  ought 
to  pertain,  to  the  said  chief  lord,  for  such  part,  according  to  the  quantity 
of  the  land  or  tenement  so  sold.  This  statute  did  not  extend  to  those 
who  held  of  the  king  as  tenants  in  capite,  who  were  kept  in  restraint  for 
some  time  longer.(7)  Free  liberty  of  alienation  was  however  subsequently 
acquired  by  them ;  and  the  right  of  disposing  of  an  estate  in  fee  simple, 
by  act  inter  vivos,  is  now  the  undisputed  privilege  of  every  tenant  of  such 
an  estate. (m)1 

(g)  Such  as  marriage  and  wardship,  to  be  hereafter  explained.     See  Bract,  lib.  ii.  c. 
19,  par.  2. 

(h)  By  the  stat.  De  Donis,  13  Edw.  I.  c.  1,  ante,  p.  43. 

(?)  Stat.  18  Edw.  I.  c.  1.  (*)  Chap.  2. 

(I)  Wright's  Tenures  162. 

(?ra)  Wright's  Tenures  172;  Co.  Litt.  Ill  b,  n.  1. 


i  See,  as  to  attempts  to  restrain  the  right  of  alienation,  infra,  p.  94,  and  American 
notes. 


62  OF    CORPOREAL    HEREDITAMENTS. 

The  alienation  of  lands  by  will  was  not  allowed  in  this  country,  from 
the  time  the  feudal  system  became  completely  rooted,  until  many  years 
after  alienation  inter  vivos  had  been  sanctioned  by  the  statute  of  Quia 
emptores.  The  city  of  London,  and  a  few  other  favored  places,  formed 
exceptions  to  the  general  restraint  on  the  power  of  testamentary  aliena- 
r*  -o-i  t'011  of  estates  in  fee  simple  ;(n)  for  in  these  places  tenements 
L  J  *might  be  devised  by  will,  in  virtue  of  a  special  custom.  In  pro- 
cess of  time,  however,  a  method  of  devising  lands  by  will  was  covertly 
adopted  by  means  of  conveyances  to  other  parties,  to  such  uses  as  the 
person  conveying  should  appoint  by  his  will.(o)  This  indirect  mode  of 
dtvising  lands  was  intentionally  restrained  by  the  operation  of  a  statute, 
passed  in  the  reign  of  King  Henry  VIII., (p)  known  by  the  name  of  the 
Statute  of  Uses,  to  which  we  shall  hereafter  have  occasion  to  make 
frequent  reference.  But  only  five  years  after  the  passing  of  this  statute, 
lands  were  by  a  further  statute  expressly  rendered  devisable  by  will. 
This  en-eat  change  in  the  law  was  effected  by  statutes  of  the  32d  and 
34th  of  Henry  VIIL(g)  But  even  by  these  statutes  the  right  to  devise 
was  partial  only,  as  to  lands  of  the  then  prevailing  tenure;  and  it  was 
not  till  the  restoration  of  King  Charles  II.,  when  the  feudal  tenures 
were  abolish  ed,(r)  that  the  right  of  devising  freehold  lands  by  will  became 
complete  and  universal.  At  the  present  day,  every  tenant  in  fee  simple 
so  fully  enjoys  the  right  of  alienating  the  lands  he  holds,  either  in  his  life- 
time or  by  his  will,  that  most  tenants  in  fee  think  themselves  to  be  the 
lords  of  their  own  domains  ;  whereas,  in  fact,  all  landowners  are  merely 
tenants  in  the  eye  of  the  law,  as  will  hereafter  more  clearly  appear. 

Blackstone's  explanation  of  an  estate  in  fee  simple  is,  that  a  tenant  in 
fee  simple  holds  to  him  and  his  heirs  for  ever,  generally,  absolutely  and 
simply,  without  mentioning  what  heirs,  but  referring  that  to  his  own 
r*p_L-|  pleasure,  or  the  disposition  of  the  law.(s)  But  the  idea  *of  nomi- 
nating  an  heir  to  succeed  to  the  inheritance  has  no  place  in  the 
English  law,  however  it  might  have  obtained  in  the  Roman  jurispru- 
dence. The  heir  is  always  appointed  by  the  law,  the  maxim  being  Solus 
Deus  hceredem  facere  potest,  non  homo  ;(t)  and  all  other  persons,  whom 
a  tenant  in  fee  simple  may  please  to  appoint  as  his  successors,  are  not 

(«)  Litt.  sect.  167  ;  Perk,  sects.  528,  537.  (o)  Perk,  ubi  sup. 

(p)  Stat.  2  7  Hen.  VIII.  c.  10,  entitled  "  An  Act  concerning  Uses  and  Wills." 
(q)  Stat.  32  Hen.  VIII.  c.  1  ;  34  &  35  Hen.  VIII.  c.  5  ;  Co.  Litt.  Ill  b,  n.  (1). 
(r)  By  stat.  12  Car.  II.  c.  24. 

(*)  2  Black.  Com.  104.     See  however  3  Black.  Com.  224,  where  the  correct  account 
is  given. 

(t)  1  Reeves's  Hist.  Eng.  Law  105  ;  Co.  Litt.  191  a,  n.  (1),  vi.  3. 


OF   AN    ESTATE    IN    FEE    SIMPLE.  64 

his  heirs  but  bis   assigns.     Thus,  a  purchaser  from   him  in   bis  lifetime 
and  a  devisee  under  his  will,  are  alike  assigns  in  law,  claiming  in  oppo- 
sition to  and  in  exclusion  of  the  heir,  who  would  otherwise  have  become 
entitled,  (u) 

With  respect  to  certain  persons,  exceptions  occur  to  the  right  of  aliena- 
tion. Before  the  Naturalization  Act,  1870,(v)  if  an  alien  or  foreigner, 
under  no  allegiance  to  the  crown, (x)  purchased  an  estate  in  lands,  the 
crown  might  at  any  time  have  asserted  a  right  to  such  estate ;  unless  it 
were  merely  a  lease  taken  by  a  subject  of  a  friendly  state  for  the  resi- 
dence or  occupation  of  himself  or  his  servants,  or  the  purpose  of  any 
business,  trade,  or  manufacture,  for  a  term  not  exceeding  twenty-one 
years.(y)  For  the  conveyance  to  an  alien  of  any  greater  estate  in  lands 
in  this  country  was  a  cause  of  forfeiture  to  the  queen,  who,  after  an 
inquest  of  office  had  been  held  for  the  purpose  of  finding  the  truth  of  the 
facts,  might  have  seized  the  lands  accordingly.^)  Before  office  found, 
that  is,  before  the  verdict  of  any  such  inquest  of  office  had  been  given, 
an  alien  might  have  made  a  conveyance  to  a  natural-born  subject ;  and 
such  conveyance  would  have  been  valid  for  all  purposes,(a)  except  to 
defeat  the  prior  right  of  the  crown,  *which  would  have  still  con-  r*fir-i 
tinued.  No  person  is  considered  an  alien  who  is  born  within  the 
dominions  of  the  crown,  even  though  such  person  may  be  the  child  of  an 
alien,  unless  such  alien  should  be  the  subject  of  a  hostile  prince.(6)  And 
in  Calvin's  case,(<?)  a  person  born  in  Scotland  after  the  accession  of 
James  I.  to  the  crown  of  England  was  held  to  be  a  natural-born  subject, 
and  consequently  entitled  to  hold  lands  in  England,  although  the  two 
kingdoms  had  not  then  been  united.  Again,  the  children  of  the  queen's 
ambassadors  are  natural-born  subjects  by  the  Common  Law  ;(d)  and,  by 
several  acts  of  parliament,  the  privileges  of  natural-born  subjects  have 
been  accorded  to  the  lawful  children,  though  born  abroad,  of  a  natural- 
born  father,  and  also  to  the  grandchildren  on  the  father's  side  of  a 
natural-born  subject  ;(e)  and  more  recently,  the  children  of  a  natural- 

(u)  Hogan  v.  Jackson,  Cowp.  305  ;  Co.  Litt.  191  a,  n.  (1),  vi.  10. 

\v)  Stat.  33  Vict.  c.  14.  (z)  Litt.  s.  198. 

{y)  Stat.  7  &  8  Vict.  c.  66,  s.  5. 

(z)  Co.  Litt.  2  b,  42  b;   1  Black.  Com.  371,  372;  2  Black.  Com.  249,  274,  293. 

(a)  Shep.  Touch.  232  ;  4  Leo.  84. 

(b)  1  Black.  Com.  373  ;  Bacon's  Abr.  tit.  Aliens  (A). 

(c)  7  Rep.  1.  (rf)  7  Rep.  is  a. 

(e)  Stat.  25  Edw.  III.  stat.  2;  7  Anne,  c.  5  ;  4  Geo.  II.  c.  21;  13  Geo.  III.  c.  21. 
Doe  dem.  Duroure  v.  Jones,  4  T.  Rep.  300  ;  Shedden  v.  Patrick,  1  M'Queen's  H.  of  L. 
Cas.  535;  Fitch  v.  Weber,  6  Hare  51. 


65 


OF    CORPOREAL   HEREDITAMENTS. 


born  mother,  though  born  abroad,  were  rendered  capable  of  taking  any 
real  or  personal  estate.  (/)  It  was  also  provided  that  any  woman,  who 
should  be  married  to  a  natural-born  subject  or  person  naturalized,  should 
be  taken  to  be  herself  naturalized,  and  have  all  the  rights  and  privileges 
of  a  natural-born  subject. (g)  And  by  a  statute  of  the  reign  of  William 
the  Third  all  the  king's  natural-born  subjects  were  enabled  to  trace 
their  title  by  descent  through  their  alien  ancestors.(A)1  Any  foreigner 
may  be  made  a  denizen  by  the  queen's  letters  patent,  and  capable  as 
such  of  acquiring  lands  by  purchase,  though  not  by  descent,(«)  or  may  be 


[*66] 


naturalized  by  act  of  parliament.     But  the  Naturalization  *Act, 
1870,(y )  now  provides(&)  that  real  and  personal  property  of  every 

(/)  Stat.  7  &  8  Vict.  c.  66,  s.  3.  (g)  7  &  8  Vict.  c.  66,  s.  16. 

(h)  Stat.  11  &  12  Will.  III.  c.  6,  explained  by  stat.  25  Geo.  II.  c.  39. 

(t)  1  Black.  Com.  374. 

(J)  Stat.  33  Vict.  c.  14,  passed  12th  May,  1870,  amended  by  stats.  33  &  34  Vict.  c.  102 
and  35  &  36  Vict.  c.  39.  This  statute  is  not  retrospective.  Sharp  v.  St.  Sauveur,  L. 
R.  7  Ch.  Ap.  343. 

(k)  33  Vict,  c.  14,  s.  2. 


1  In  the  United  States  the  subjects  of 
alienage  and  naturalization  are  under  the 
control  of  Congress  (Constitution  of  the 
United  States,  Art.  I.  sect.  8),  which  has 
passed  several  acts  upon  the  subject  pro7 
Tiding  for  a  declaration  of  intention  to 
become  a  citizen,  and  admission  to  citizen- 
ship after  a  residence  of  five  years.  See 
Brightly's  Digest  of  U.  S.  Laws,  title 
Aliens.  The  minor  children  of  persons 
naturalized,  if  dwelling  within  the  United 
States,  become  citizens  by  the  naturaliza- 
tion of  their  parents,  and  by  the  Act  of 
February  10,  1855  (10  stat.  604;  Brightly's 
U.  S.  Digest,  title  Citizenship,  p.  132), 
children  born  abroad,  whose  fathers  were 
at  the  time  of  their  birth  citizens,  and  also 
women  who  might  be  naturalized  by  law, 
married  to  citizens,  are  declared  citizens. 
In  Kelly  v.  Owen  et  al.,  7  Wallace  496,  it 
was  held  by  the  Supreme  Court  of  the 
United  States  that  under  this  act,  the 
status  of  citizenship  resulted  to  the  wife 
from  the  fact  of  marriage  to  a  citizen, 
without  regard  to  whether  his  citizenship 
existed  at  the  time  of  marriage  or  was 
acquired  afterwards.  In  cases  not  covered 
by  this  act,  the  question  of  citizenship  is 
to  be  settled  by  the  common  law.     See  an 


able  article  by  the  Hon.  Horace  Binney, 
in  2  Am.  Law  Register  193  (which  is  be- 
lieved to  have  caused  the  passage  of  the 
act  above  mentioned),  and  the  case  of 
Ludlam  v.  Ludlam,  3  Am.  Law  Register 
N.  S.  595  ;  s.  c.  26  New  York  Rep.  356, 
where  the  subject  is  elaborately  discussed 
by  Selden,  J.,  and  a  different  view  taken 
from  that  of  Mr.  Binney. 

The  question  of  alienage  or  citizenship, 
therefore,  is  to  be  determined  by  the  acts 
of  Congress  and  the  common  law,  but  the 
title  of  aliens  to  lands  within  the  limits  of 
the  several  States  is  matter  of  State  regu- 
lation. In  most  of  the  States  aliens  are 
enabled  by  statute  to  take,  hold,  and  trans- 
mit real  estate,  either  without  restriction 
or  subject  to  prescribed  conditions  as  to 
residence,  declaration  of  intention  to  be- 
come citizen  under  the  laws  of  Congress 
relating  to  naturalization,  quantity  and 
value  of  the  land,  and  the  like.  Thus  in 
Pennsylvania  alien  friends  may  take  by 
devise  or  descent  without  limit,  but  can 
only  hold  by  purchase  5000  acres,  and  not 
exceeding  20,000  dollars  in  net  annual 
value.  Purdon's  Digest,  title  Aliens,  p. 
65;  and  see  1  Greenl.  Cruise  53,  for  the 
statutes  of  other  States.  M. 


OF    AN    ESTATE    IN    FEE    SIMPLE.  66 

description  may  be  taken,  acquired,  hold,  and  disposed  of  by  an  alien  in 
the  same  manner  in  all  respects  as  by  a  natural-born  British  subject; 
and  a  title  to  real  and  personal  property  of  every  description  may  be 
derived  through,  from,  or  in  succession  to  an  alien  in  the  same  manner 
in  all  respects  as  through,  from,  or  in  succession  to  a  natural-bom  British 
subject.  This  act  repeals  many  of  the  former  statutes  with  respect  to 
aliens,  and  contains  several  important  amendments  of  the  general  law  on 
this  subject. 

Infants,  or  all  persons  under  the  age  of  twenty-one  years,  and  also 
idiots  and  lunatics,  though  they  may  hold  lands,  are  incapacitated  from 
making  a  binding  disposition  of  any  estate  in  them.     The  conveyances 
of  infants  are  generally  voidable  only,(J)  and  those  of  lunatics  and  idiots 
appear  to  be  absolutely  void,  unless  they  were  made  by  feoffment  with 
livery  of  seisin  before  the  year  1845.(m)     But  by  a  recent  act  of  par- 
liament,^) every  infant,  not  under  twenty  if  a  male,  and  not  under 
seventeen  if  a  female,  is  empowered  to  make  a  valid  and  binding  settle- 
ment on  his  or  her  marriage,  with  the  sanction  of  the  Chancery  Division 
of  the  High  Court.     If,  however,  any  disentailing  assurance  shall  have 
been  executed  by  an  infant  tenant  in  tail  under  the  provisions  ot   the 
act,  and  such  infant  shall  *afterwards  die  under  age,  such  dis-    ^^ 
entailing  assurance  shall  thereupon  become  absolutely  void.(o) 
Under  certain  circumstances,  also  for  the  sake  of  making  a  title  to  lands, 
infants  have  been  empowered,  by  modern  acts  of  parliament,  to  make 
conveyances  of  fee-simple  and  other  estates,  under  the  direction  ot  the 
Chancery  Division  of  the  High  Court.(^)     And  more  extensive  powers, 
with  respect  to  the  estates  of  idiots  and  lunatics,  have  been  given  to  their 
committees,  or  the  persons  who  have  had  committed  to  them  the  charge 
of  such  idiots  and  lunatics.^)     Power  is  also  given  to  the  Chancery 

(l)  2   Black.  Com.  291  ;  Bac.  Abr.  tit.  Infancy  and  Age  (I.  3  ;)  Zouch  v.  Parsons,  3 
Burr.  1794:  Allen  v.Allen,  2  Dru.  &  War.  307,  338. 

(m)  Yates  v.  Boen,  2  Strange  1104;  Sugd.  Pow.  604,  8th  ed. ;  Bac.  Abr.  tat  Idiots 
and  Lunatics  (F) ;  stat.  7  &  8  Vict.  c.  76,  s.  7  ;  8  &  9  Vict.  c.  106,  b.  4 

(«)  Stat.  18  &  19  Vict.  c.  43,  extended  to  the  Court  of  Chancery  in  Ireland  by  stat 
23  &  24  Vict.  c.  83  ;  Re  Dalton,  6  De  Gex,  Mac.  &  Gor.  201. 

(o)  Stat.  18  &  19  Vict.  c.  43,  s.  2. 

(p)  See  stat.  11  Geo.  IV.  &  1  Will.  IV.  c.  47,  s.  11 ;  11  Geo.  IV.  &  1  Will.  I\  .  o.  65, 
as.  12,  16,  31;  2  &3  Vict.  c.  60;   11  &  12  Vict.  c.  87. 

(q)  See  stat.  16  &  17  Vict.  c.  70,  s.  108  et  seq.,  repealing  and  consolidating  stats.  11 
Geo  IV  &  1  Will.  IV.  c.  65,  and  15  &  16  Vict.  c.  48,  and  other  acts,  so  far  as  they  re- 
late to  idiots  and  lunatics  in  England  and  Wales.  This  act  has  been  amended  by  stat. 
18  &  19  Vict.  c.  13,  and  extended  by  stat.  25  &  26  Vict.  c.  86. 


67  OF    CORPOREAL    HEREDITAMENTS. 

Division  of  the  High  Court  in  the  case  of  infants,(r)  and  to  the  Lord 
Chancellor  or  either  of  the  Lords  Justices,(s)  intrusted  by  virtue  of  the 
queen's  sign  manual  with  the  care  of  the  persons  and  estates  of  idiots 
and  lunatics,^)1  by  a  simple  order,  to  vest  in  any  other  person  the  lands 
of  which  any  infant,  idiot,  or  lunatic  may  be  seised  or  possessed  upon 
any  trust  or  by  way  of  mortgage.  The  Supreme  Court  of  Judicature 
Act,  1875, (u)  provides  that  any  jurisdiction  usually  vested  in  the  Lords 
Justices  of  Appeal  in  chancery,  or  either  of  them,  in  relation  to  the 
persons  and  estates  of  idiots,  lunatics,  and  persons  of  unsound  mind,  shall 
be  exercised  by  such  judge  or  judges  of  the  High  Court  of  Justice  or 
Court  of  Appeal  as  may  be  intrusted  by  the  queen's  sign  manual  with 
the  care  and  commitment  of  the  custody  of  such  persons  and  estates. 

r*P81  *Married  women  are  under  a  limited  incapacity  to  alienate,  as 
will  hereafter  appear.  And  before  the  abolition  of  forfeiture  for 
treason  and  felony,(v)  persons  attainted  for  these  crimes  could  not,  by 
any  conveyance  which  they  might  make,  defeat  the  right  to  their  estates 
which  their  attainder  gave  to  the  crown,  or  to  the  lord  of  whom  their 
estates  were  holden.(w) 

There  are  certain  objects,  also,  in  respect  of  which  the  alienation  of 
lands  is  restricted.  In  the  reign  of  George  II.  an  act  was  passed,  com- 
monly called  the  Mortmain  Act,  the  object  of  which,  as  expressed  in  the 
preamble,  was  to  prevent  improvident  alienations  or  dispositions  of 
landed  estates,  by  languishing  or  dying  persons,  to  the  disherison  of 
their  lawful  heirs. (a?)  This  statute  provides  that  no  lands  or  heredita- 
ments, nor  any  money,  stock,  or  other  personal  estate,  to  be  laid  out  in 

(?•)  "The  Trustee  Act,  1850,"  stat.  13  &  14  Vict.  c.  60,  ss.  7,  8. 

(s)  Stat.  30  &  31  Vict.  c.  87,  s.  13. 

(t)  Stat.  13  &  14  Vict.  c.  60,  ss.  3,  4;   15  &  16  Vict.  c.  55,  s.  11. 

(u)  Stat.  38  &  39  Vict.  c.  77,  s.  7. 

(v)  By  stat.  33  &  34  Vict.  c.  23,  passed  4th  July,  1870. 

(w)  Co.  Litt.  42  b  ;  2  Black.  Com.  290  ;  Perkins,  tit.  Grant,  sect.  26  ;  Com.  Dig.  tit. 
Capacity  (D.  6);  2  Shep.  Touch.  232;  Doe  d.  Griffith  v.  Pritchard,  5  Barn.  &  Adol. 
765  (E.  C.  L.  R.  vol.  27). 

(x)  Stat.  9  Geo.  II.  c.  36. 


1  The  student  will,  of  course,  remember  well  be  supposed  to  have  been  always  ex- 
that  the  Court  of  Chancery  has  always  ercised  by  virtue  of  his  office.  It  is,  how- 
had  the  custody  and  control  of  infants,  ever,  in  theory  at  least,  a  specially  dele- 
but  not  so  of  idiots  and  lunatics  ;  although  gated  authority  from  the  crown,  and  has 
such  a  power  has  been  for  so  long  a  time  been,  in  former  times,  exercised  by  other 
delegated  to  the  Chancellor,  that  it  might  officers  than  the  Chancellor.  R. 


OF   AN    ESTATE   IN   FEE    SIMPLE.  68 

the  purchase  of  any  lands  or  hereditaments,  shall  be  conveyed  or  settled 
for  any  charitable  uses,  unless  by  deed  indented,  sealed,  and  delivered  in 
the  presence  of  two  or  more  credible  witnesses,  twelve  calendar  months 
at  least  before  the  death  of  the  donor  or  grantor,  including  the  days  of 
the  execution  and  death,  and  inrolled  in  the  High  Court  of  Chancery 
within  six  calendar  months  next  after  the  execution  thereof;  and  unless 
such  stock  be  transferred  six  calendar  months  at  least  before  the  death 
of  the  donor  or  grantor,  including  the  days  of  the  transfer  and  death  ; 
and  unless  the  same  be  made  to  take  effect  in  possession  for  the  charitable 
use  intended  immediately  from  the  making  thereof,  and  be  without  any 
power  *of  revocation,  reservation,  trust,  condition,  limitation,  r*ccn 
clause,  or  agreement  whatsoever,  for  the  benefit  of  the  donor  or 
grantor,  or  of  any  person  or  persons  claiming  under  him.(?/)  Provided 
always,  that  nothing  therein  before  mentioned  relating  to  the  sealing 
and  delivering  of  any  deed  twelve  calendar  months  at  least  before  the 
death  of  the  grantor,  or  to  the  transfer  of  any  stock  six  calendar  months 
before  the  death  of  the  grantor,  shall  extend  to  any  purchase  of  any 
estate  or  interest  in  lands  or  hereditaments,  or  any  transfer  of  stock  to 
be  made  really  and  bona  fide  for  a  full  and  valuable  consideration 
actually  paid  at  or  before  the  making  of  such  conveyance  or  transfer, 
without  fraud  or  collusion. (z)  And  all  gifts,  conveyances,  and  settle- 
ments for  any  charitable  uses  whatsoever  made  in  any  other  manner  or 
form  than  by  that  act  is  directed,  are  declared  to  be  absolutely  and  to 
all  intents  and  purposes  null  and  void. (a)  Gifts  to  either  of  the  two 
Universities,  or  any  of  their  colleges,  or  to  the  college  of  Eton,  Win- 
chester, or  Westminster,  for  the  support  and  maintenance  of  the  scholars 
only  upon  those  foundations,  are  excepted. (b)  It  will  be  seen  that  in 
consequence  of  this  act  no  gift  of  any  estate  in  land  for  charitable  pur- 
poses can  be  made  by  will.  By  an  act  of  parliament  passed  on  the  25th 
of  July,  1828,(6')  the  title  to  lands  then  already  purchased  for  valuable 
consideration  for  charitable  purposes  is  rendered  valid,  notwithstanding 
the  want  of  an  indenture  duly  attested  and  enrolled ;  but  the  act  is 
retrospective  merely. (d) 

The  stringency  of  the  provisions  in  the  Mortmain  Act  has  often  been 
felt  to  be  unnecessarily  great,  especially  with  regard  to  that  part  of  the 
act  which  provides  that  there  shall  be  no  reservation  or  clause  t^a-i 
*whatever  for  the  benefit  of  the  donor  or  grantor.     And  several 

(y)  Stat.  9  Geo.  II.  c.  36,  s.  1.  (z)  Sect.  2.  (a)  Sect.  3. 

(6)  Sect.  4.  (c)  Stat.  9  Geo.  IV.  c.  85.  (d)  Sect.  3. 


70  OF   CORPOREAL    HEREDITAMENTS. 

acts  Lave  recently  been  passed  to  amend  the  law  relating  to  the  convey- 
ance of  land  for  charitable  uses.  One  act,(e)  which  was  passed  on  the 
17th  of  May,  1861,  provides  that  no  assurance  for  charitable  uses  shall 
be  void  by  reason  of  the  deed  or  assurance  not  being  indented,  or  not 
purporting  to  be  indented,  nor  by  reason  of  such  deed  or  assurance,  or 
any  deed  forming  part  of  the  same  transaction,  containing  any  grant  or 
reservation  of  any  peppercorn  or  other  nominal  rent,  or  of  any  mines  or 
minerals  or  easement,  or  any  covenants  or  provisions  as  to  the  erection, 
repair,  position,  or  description  of  buildings,  the  formation  or  repair  of 
streets  or  roads,  drainage  or  nuisance,  or  any  covenants  or  provisions  of 
the  like  nature,  for  the  use  and  enjoyment,  as  well  of  the  hereditaments 
comprised  in  such  deed  or  assurance  as  of  any  other  adjacent  or  neigh- 
boring hereditaments,  or  any  right  of  entry  on  non-payment  of  any  such 
rent,  or  on  breach  of  any  such  covenant  or  provision,  or  any  stipulations 
of  the  like  nature,  for  the  benefit  of  the  donor  or  grantor,  or  of  any  per- 
son or  persons  claiming  under  him ;  nor  in  the  case  of  copyholds  by  rea- 
son of  the  assurance  not  being  made  by  deed ;  nor  in  the  case  of  such 
assurances,  made  bona  fide  on  a  sale  for  a  full  and  valuable  considera- 
tion, by  reason  of  such  consideration  consisting  wholly  or  partly  of  a 
rent,  rent-charge,  or  other  annual  payment,  reserved  or  made  payable  to 
the  vendor  or  to  any  other  person,  with  or  without  a  right  of  re-entry 
for  non-payment  thereof:  provided  that  in  all  reservations  authorized  by 
the  act,  the  donor,  grantor,  or  vendor  shall  reserve  the  same  benefits  for 
his  representatives  as  for  himself.  (/)  The  act  further  provides  that  in 
r;(.71  -.  all  cases  where  the  charitable  uses  of  any  deed  or  assurance  *there- 
after  to  be  made  for  conveyance  of  any  hereditaments  for  any 
charitable  uses  shall  be  disclosed  by  any  separate  deed,  the  deed  of  con- 
veyance need  not  be  enrolled ;  but  it  will  be  void  unless  such  separate 
deed  be  enrolled  in  the  Chancery  Division  of  the  High  Court  within 
six  calendar  months  next  after  the  making  or  perfecting  of  the  deed  for 
conveyance.(^) 

This  act,  it  will  be  observed,  provides  only  for  the  reservation  of  a 
nominal  rent,  except  in  the  case  of  an  assurance  made  bona  fide  on  a  sale 
for  a  full  and  valuable  consideration  ;  so  that  a  gift  of  land  to  a  charity, 
reserving  a  pecuniary  rent  or  rent-charge  to  the  grantor,  would  still  have 
been  void.  Moreover  no  alteration  was  made  in  that  part  of  the  Mort- 
main Act  which  relates  to  the  execution  of  the  deed  twelve  calendar 

(e)  Stat.  24  Vict.  c.  9.  Provisions  were  made  with  respect  to  Roman  Catholic  Chari- 
ties by  an  act  of  the  previous  session,  stat.  23  &  24  Vict.  c.  134. 

(/)  Stat.  24  Vict.  c.  9,  s.  1.  (c,)  Stat.  24  Vict.  c.  9,  s.  2. 


OF   AN   ESTATE    IN    FEE    SIMPLE.  71 

months  at  least  before  the  death  of  the  grantor.  The  only  exception 
which  that  act  allowed  was  in  the  case  of  a  purchase  of  land  bona  fide, 
for  a  full  and  valuable  consideration  actually  paid  at  or  before  the  making 
of  the  conveyance.  If  on  a  purchase  a  rent  were  reserved  to  the  ven- 
dor, it  is  clear  that  the  full  consideration  was  not  actually  paid  at  the 
making  of  the  conveyance.  There  was  nothing  in  the  new  act,  as  there 
was  certainly  nothing  in  the  former  one,  to  preserve  such  a  conveyance 
from  becoming  void  by  the  decease  of  the  vendor  within  twelve  calendar 
months  from  the  date  of  the  deed.  This  oversight  in  the  act  has  been 
provided  for  by  a  more  recent  statute,(/<)  which  enacts  that  every  full 
and  bona  fide  valuable  consideration  which  shall  consist  either  wholly  or 
partly  of  a  rent  or  other  annual  payment  reserved  or  made  payable  to 
the  vendor  or  grantor,  or  to  any  other  person,  shall,  for  the  purposes  of 
the  Mortmain  Act,  be  as  valid  and  have  the  same  force  and  effect  as  if 
such  consideration  had  been  *a  sum  of  money  actually  paid  at  or  r*79n 
before  the  making  of  such  conveyance,  without  fraud  or  collusion. 

With  regard  to  deeds  and  assurances  already  made,  it  has  been  pro- 
vided by  another  act(i')  that  all  money  really  and  bona  fide  expended 
before  the  16th  of  May,  1862,  the  date  of  the  act,  in  the  substantial  and 
permanent  improvement,  by  building  or  otherwise  for  any  charitable 
use,  of  land  held  for  such  charitable  use,  shall  be  deemed  equivalent  to 
money  actually  paid  by  way  of  consideration  for  the  purchase  of  the  said 
land.  It  has  also  been  provided(&)  that  every  deed  or  assurance  by 
which  any  land  shall  have  been  demised  for  any  term  of  years  for  any 
charitable  use  shall,  for  the  purposes  of  the  Mortmain  Act,  be  deemed 
to  have  been  made  to  take  effect  for  the  charitable  use  thereby  intended 
immediately  from  the  making  thereof,  if  the  term  for  which  such  land 
shall  have  been  thereby  demised  was  made  to  eommence  and  take  effect 
in  possession  at  any  time  within  one  year  from  the  date  of  such  deed  or 
assurance.  And  it  has  been  further  provided,  with  respect  to  all  deeds 
and  assurances  under  which  possession  is  held  for  any  charitable  uses, 
that  if  made  bona  fide  for  a  full  and  valuable  consideration,  actually  paid 
at  or  before  the  making  of  such  deed  or  assurance,  or  reserved  by  way 
of  rent,  rent-charge,  or  other  annual  payment,  or  partly  paid  and  partly 
so  reserved,  no  such  deed  or  assurance  shall  be  void  within  the  Mortmain 
Act,  if  it  was  made  to-  take  effect  in  possession  for  the  charitable  uses 
intended  immediately  from  the  making  thereof,  and  without  any  power 

(h)  Stat.  27  Vict.  c.  13,  s.  4.  (*)  Stat.  25  Vict.  c.  17,  s.  5. 

(k)  Stat.  26  &  27  Vict.  c.  10G. 


72  OF    CORPOREAL    HEREDITAMENTS. 

of  revocation,  and  has  been  enrolled  in  the  Court  of  Chancery  before  the 
17th  of  May,  1866. (J)  And  all  conveyances  to  charitable  uses  made 
r*73T  upon  such  full  and  ^valuable  consideration  as  aforesaid,  and  un- 
der  which  possession  is  held  for  such  uses,  are  rendered  valid 
where  any  separate  deed  declaring  the  uses  has  alone  been  enrolled,  or 
where  such  separate  deed  shall  have  been  executed  within  six  calendar 
months  from  the  13th  of  May,  1864,  and  enrolled  before  the  17th  of 
May,  1866. (m)  Where  the  original  deed  creating  any  charitable  trust 
has  been  lost,  the  Chancery  Division  of  the  High  Court  is  empowered  to 
authorize  the  enrolment  in  its  stead  of  any  subsequent  deed  by  which  the 
trusts  may  sufficiently  appear.(w)  And  power  is  now  given  to  the  clerk 
of  enrolments  in  Chancery  for  the  time  being  to  enrol  any  conveyance 
for  charitable  uses,  if  he  be  satisfied  that  the  same  was  made  really  and 
bona  fide  for  full  and  valuable  consideration,  actually  paid  at  or  before 
the  making  and  perfecting  thereof,  or  reserved  by  way  of  rent-charge  or 
other  annual  payment,  or  partly  paid  and  partly  reserved  as  aforesaid, 
without  fraud  or  collusion,  and  that  at  the  time  of  the  application  to  the 
said  clerk  possession  or  enjoyment  is  held  under  such  instrument,  and 
that  the  omission  to  enrol  the  same  in  proper  time  has  arisen  from 
ignorance  or  inadvertence,  or  from  the  destruction  thereof  by  time  or 
accident.(o)  When  land  has  been  already  devoted  to  charitable  pur- 
poses, the  conveyance  thereof  to  other  trustees,  or  to  another  charity, 
does  not  fall  within  the  purview  of  the  Mortmain  Act,  and  accordingly 
requires  no  special  attestation  or  enrolment.(jo)  The  acknowledgment 
of  deeds  prior  to  enrolment  in  the  Chancery  Division  of  the  High  Court 
is  now  abolished. (q) 

r*7il        *^  endowed  charities  are  now  placed  under  the  control  of 

the  Charity  Commissioners  for  England  and  Wales. (r)     Endowed 

schools  were,  for  a  time,  placed  under  the  care  of  certain  commissioners, 

(I)  Stats.  24  Vict.  c.  9,  s.  3  ;  27  Vict.  c.  13,  s.  1. 

(ro)  Stats.  24  Vict    c.  9,  s.  4:  27  Vict.  c.  13,  ss.  1,  2. 

(n)  Stat.  27  Vict.  c.  13,  s.  3. 

(o)  Stat.  35  &  36  Vict.  c.  24,  s.  13,  which  now  supersedes  stat.  29  &  30  Vict.  c.  57, 
by  which  power  to  authorize  enrolments  in  these  cases  was  given  to  the  Court  of 
Chancery. 

(p)  Walker  v.  Richardson,  2  Mees.  &  Wels.  882;  Attorney-General  v.  Glyn,  12  Sim. 
84;  Ashton  v.  Jones,  28  Beav.  460. 

(q)  Stat.  31  &  32  Vict.  c.  44,  s.  3. 

(r)  Stat.  16  &  17  Vict,  c  137,  amended  by  stats.  18  &  19  Vict  c.  124,  and  23  &  24 
Vict.  c.  136,  explained  by  stat.  25  &  26  Vict.  c.  112,  and  amended  by  stat.  32  &  33 
Vict.  c.  110. 


OF  AN  ESTATE  IN  FEE  SIMPLE.  74 

called  the  Endowed  School  Commissioners. (s)  But  all  their  powers  and 
duties  are  now  transferred  to  and  imposed  on  the  Charity  Commis- 
sioners.^) An  official  trustee  of  charity  lands  has  been  appointed,  in 
whom  may  be  vested,  by  order  of  the  Chancery  Division  of  the  High 
Court  or  of  any  judge  having  jurisdiction,  any  charity  lands,  whenever 
the  trustees  do  not  or  will  not  act,  or  there  are  no  trustees,  or  none 
certainly  known,  or  where  any  of  the  trustees  are  under  age,  lunatic,  or 
of  unsound  mind,  or  otherwise  incapable  of  acting  or  out  of  the  juris- 
diction of  the  Court,  or  where  a  valid  appointment  of  new  trustees  can- 
not be  made,  or  shall  be  considered  too  expensive.(w)  But  it  is  now 
provided  that  where  the  trustees  of  a  charity  have  power  to  determine 
on  any  disposition  of  any  property  of  the  charity,  a  majority,  who  are 
present  at  a  meeting  of  their  body  duly  constituted,  and  vote  on  the 
question,  shall  have,  and  be  deemed  to  have  always  had,  full  power  to 
execute  and  do  all  such  assurances,  acts,  and  things  as  may  be  requisite 
for  carrying  any  such  disposition  into  effect ;  and  all  such  assurances, 
acts,  and  things  shall  have  the  same  effect  as  if  they  were  respectively 
executed  and  done  by  all  such  trustees  and  by  the  official  trustee  of 
charity  lands. (a;) 

An  important  exception  to  the  Mortmain  Act  has  *been  intro-  r^yc-i 
duced  by  acts  of  parliament  passed  to  afford  further  facilities  for 
the  conveyance  and  endowment  of  sites  for  schools, (y)  by  which  one 
witness  only  is  rendered  sufficient  for  such  a  conveyance,^)  and  the 
death  of  the  donor  or  grantor  within  twelve  calendar  months  from  the 
execution  of  the  deed  will  not  render  it  void.(a)  But  by  these  acts  the 
necessity  of  enrolment  does  not  appear  to  have  been  dispensed  with. (b) 
These  acts  contain  many  other  provisions  for  facilitating  the  erection 
of  schools  for  the  education  of  the  poor.  And,  by  more  recent  acts 
of  parliament,  provision  has  been  made  for  the  conveyance  of  sites 
for  literary  and  scientific  and  other  similar  institutions  ;(e)  for 
facilitating  grants  of  land  for   the   recreation   of  adults,  and  as  play- 

(s)  Stat.  32  &  33  Vict.  c.  56,  amended  by  stat.  36  &  37  Vict.  c.  87. 

(t)   Stat.  37  &  38  Vict.  c.  87. 

(w)  Stats.  16  &  17  Vict.  c.  137,  s.  48;    18  &  19  Vict.  c.  124,  s.  15. 

(x)  Stat.  32  &  33  Vict.  c.  110,  s.  12,  repealing  stat.  23  &  24  Vict.  c.  136,  s.  16. 

(y)  Stat.  4  &  5  Vict.  c.  38,  explained  by  stat.  7  &  8  Vict.  c.  37  ;  extended  and  further 
explained  by  stat.  12  &  13  Vict.  c.  49,  amended  by  stat.  14  &  15  Vict.  c.  24;  and  ex- 
tended by  stat.  15  and  16  Vict.  c.  49. 

(z)  Stat.  4  &  5  Vict.  c.  38,  s.  10.  (a)  Stat.  7  &  8  Vict.  c.  37,  s.  3. 

(6)  See  stat.  4  &  5  Vict.  c.  38,  s.  16.  (c)  Stat.  17  &  18  Vict.  c.  112. 

5 


75 


OF    CORPOREAL    HEREDITAMENTS. 


grounds  for   children  5(d)1  and  also  to  afford  further  facilities  for  the 
conveyance  of  land  for  sites  for  places  of  religious  worship  and  for  burial 

(d)  Stat.  22  Vict.  c.  27. 


1  The  common  law  recognized  no  dis- 
tinction, as  to  the  right  to  receive,  hold, 
and  convey  lands,  between  corporations, 
whether  sole  or  aggregate,  ecclesiastical 
or  lay,  and  others.  Their  right  to  retain 
and  convey  lands  has  been,  however,  by  a 
series  of  statutes,  from  Magna  Charta 
down  to  those  noticed  in  the  text  (and  of 
which  a  complete  list  will  be  found  in 
note  k  to  page  98  of  Grant  on  Corpora- 
tions), at  successive  periods,  restrained, — 
at  first,  from  jealousy  of  the  accumula- 
tion of  wealth  and  power  in  the  dead  hand 
of  the  Church,  and  subsequently  from  a 
desire  that  property  should  more  freely 
pass  from  hand  to  hand;  and  these  re- 
strictions were,  by  the  15  Richard  II.  c.  5, 
extended  to  all  corporations.  These  stat- 
utes do  not,  however,  mention  personal 
property ;  and  even  as  to  real  estate,  the 
title  of  the  corporation  is  valid  until  office 
found.  Shelford  on  Mortmain  8 ;  Run- 
yan  v.  Coster,  14  Peters  22. 

In  Pennsylvania,  in  the  report  of  the 
Judges  as  to  the  English  statutes  in  force 
in  that  State,  it  is  said:  "These  statutes 
are  in  part  inapplicable  to  this  country, 
and  in  part  applicable  and  in  force.  They 
are  so  far  in  force  that  all  conveyances, 
either  by  deed  or  will,  of  lands,  tene- 
ments, or  hereditaments,  made  to  a  body 
corporate,  or  for  the  use  of  a  body  cor- 
porate, are  void  unless  sanctioned  by 
charter  or  act  of  Assembly.  So,  also, 
are  all  such  conveyances  void,  made  either 
to  an  individual  or  to  any  number  of  per- 
sons associated,  but  not  incorporated,  if 
the  said  conveyances  are  for  uses  or  pur- 
poses of  a  superstitious  nature,  and  not 
calculated  to  promote  objects  of  charity 
or  utility.''  3  Binney  626.  The  inci- 
dental expression  by  Story,  J.,  in  the 
great  case  of  Vidal  v.  Girard's  Execu- 
tors, 2  Howard  189,  that  these  statutes 
did  not  exist  in  Pennsylvania,  although  in 
accordance  with  the  opinion  expressed  in 


Magill  v.  Brown,  Brightly's  Rep.  350,  and 
sustained  by  that  in  Miller  v.  Leech,  1 
Wallace,  Jr.,  212,  was  not  in  harmony 
with  the  decision  by  the  Supreme  Court 
of  that  State  in  Leazure  v.  Hillegas,  7 
Sergeant  &  Rawle  321,  where  it  was  said 
that  the  meaning  of  the  report  of  the 
Judges  was  that,  according  to  the  statutes 
cited  by  them,  conveyances  to  superstitious 
uses  are  absolutely  void,  and  conveyances 
to  corporations  not  superstitious  are  so 
far  void  that  those  corporations  shall 
have  no  capacity  to  hold  the  estates  for 
their  own  benefit,  but  subject  to  the  right 
of  the  Commonwealth,  who  may  appro- 
priate them  to  its  own  use  at  pleasure. 
Leazure  v.  Hillegas,  7  Sergeant  &  Rawle 
321.  It  is  not,  however,  easy  to  see,  as 
was  said  by  Gibson,  C.  J.,  in  Methodist 
Church  v.  Remington,  1  Watts  224;  how 
there  can  be  such  a  thing  as  a  super- 
stitious use  in  Pennsylvania,  "  at  least  in 
the  acceptation  of  the  word  by  the  British 
courts,  who  seem  to  have  extended  it  to 
all  uses  which  are  not  subordinate  to  the 
interests  and  will  of  the  Established 
Church.  So  far  was  this  carried  in  the 
Attorney-General  v.  Guise,  2  Vernon  266, 
that  the  charge  of  an  annual  sum  for  the 
education  of  Scotchmen  to  propagate  the 
doctrines  of  the  Church  of  England  in 
Scotland  was  treated  as  superstitious, 
because  Presbyteries  were  settled  there 
by  act  of  Parliament."  But,  whatever 
may  or  may  not  be  the  force  of  the  stat- 
utes of  Mortmain  in  Pennsylvania,  it  was 
enacted,  in  1833,  that  all  lands  held  in 
that  State  by  foreign  corporations,  and 
all  lands  purchased  or  held  in  trust  for 
any  corporation,  without  license  from  the 
Commonwealth,  should  be  forfeited  to  the 
Commonwealth,  as  in  the  case  of  an  es- 
cheat for  want  of  heirs.  Purdon's  Di- 
gest 617. 

[And  in   1855,  it  was  enacted   that  no 
estate  shall  hereafter  be  bequeathed,  de- 


OF   AN    ESTATE    IN   FEE    SIMPLE.  75 

places. (e)  A  further  important  inroad  upon  the  Mortmain  Act  lias 
also  been  made  by  an  act(/)  which  provides  that  all  alienations,  except 
by  will,  bona  fide  made  after  the  passing  of  that  act,  to  a  trustee  or  trus- 
tees on  behalf  of  any  society  or  body  of  persons  associated  together  for 
religious  purposes,  or  for  the  promotion  of  education,  arts,  literature, 
science,  or  other  like  purposes,  of  land  for  the  erection  thereon  of  a  build- 
ing for  such  purposes  or  any  of  them,  or  whereon  a  building  used  or 
intended  to  be  used  for  such  purposes  or  any  of  them  shall  have  been 
erected,  shall  be  exempt  from  the  provisions  of  the  Mortmain  Act,  and 
from  the  *provisions  of  the  2d  section  of  the  act  24  Vict.  c.  9  ;(g)  pyg-i 
provided  such  disposition  shall  have  been  really  and  bona  fide 
made  for  a  full  and  valuable  consideration  actually  paid  upon  or  before 
the  making  thereof,  or  reserved  by  way  of  rent,  rent-charge,  or  other 
annual  payment,  or  partly  paid  and  partly  reserved  as  aforesaid,  without 
fraud  or  collusion,  and  provided  that  each  such  piece  of  land  shall  not 
exceed  two  acres  in  extent  or  area  in  each  case.  The  deed  or  instru- 
ment of  disposition  may  at  any  time  be  enrolled  in  the  Chancery  Division 
of  the  High  Court  if  thought  fit.  And  by  a  more  recent  statute  all  gifts 
and  assurances  of  land  of  any  tenure,  by  deed,  or  by  will  or  codicil,  for 
the  purposes  only  of  a  public  park,  a  schoolhouse  for  an  elementary 
school,  or  a  public  museum,  are  rendered  valid  notwithstanding  the  stat- 
utes of  Mortmain. (Ji)  But  every  such  will  or  codicil  and  every  such  deed, 
made  otherwise  than  for  full  and  valuable  consideration,  must  be  made 
twelve  calendar  months,  at  least,  before  the  death  of  the  testator  or 
grantor,  and  must  be  enrolled  in  the  books  of  the  Charity  Commissioners 
within  six  calendar  months  next  after  the  time  when  the  same  shall  come 
into  operation. (i)  But  the  act  does  not  authorize  any  gift  by  will  or 
codicil  of  more  than  twenty  acres  of  land  for  any  one  public  park,  or  of 
more  than  two  acres  of  land  for  any  one  public  museum,  or  of  more  than 
one  acre  of  land  for  any  one  schoolhouse. (&) 

Again,    no    conveyance   can    be  made  to    any  corporation,    unless   a 

license  to  take  lands  has  been  granted  to  it  by  the  crown.     Formerly, 

(e)  Stat.  36  &  37  Vict.  c.  50.        (/)  Stat.  31  &  32  Vict.  c.  44,  passed  13th  July,  1868. 
(ff)  Ante,  p.  71.  (h)  Stat.  34  Vict.  c.  13,  s.  4. 

(i)  Sect.  5.  (k)  Sect.  6. 

vised  or  conveyed  to  any  body  politic,  or  States,  the  statutes  of  Mortmain  are  be- 
to  any  person  in  trust  for  religious  or  lieved  not  to  be  in  force,  and  corporations 
charitable  uses,  except  by  deed  or  will,  can,  in  general,  hold  real  estate  for  pur- 
executed  at  least  a  month  before  the  death  poses  not  foreign  to  their  institution.  See 
of  the  testator  or  alienor.  Purdon's  Di-  Angell  &  Ames  on  Corporations,  chap,  v.; 
gest,  title  Charities,  p.  208.  M.]     In  other  2  Kent's  Com.  282-3,  and  note.  R. 


76  OF    CORPOREAL    HEREDITAMENTS. 

license  from  the  lord,  of  whom  a  tenant  in  fee  simply  held  his  estate,  was 
also  necessary  to  enable  him  to  alienate  his  lands  to  any  corporation. (I) 
r;).-71    For  this  alienation  to  a  body  ^having  perpetual  existence  was  an 

injury  to  the  lord,  who  was  then  entitled  to  many  advantages,  to 
be  hereafter  detailed,  so  long  as  the  estate  was  in  private  hands ;  but  in 
the  hands  of  a  corporation  these  advantages  ceased.  In  modern  times, 
the  rights  of  the  lords  having  become  comparatively  trifling,  the  license 
of  the  crown  alone  has  been  rendered  by  parliament  sufficient  for  the 
purpose. (m)  And  it  is  now  provided  that  any  incorporated  charity  may, 
with  the  consent  of  the  charity  commissioners,  invest  money  arising  from 
any  sale  of  land  belonging  to  the  charity,  or  received  by  way  of  equality 
of  exchange  or  partition,  in  the  purchase  of  land  ;  and  may  hold  such 
land,  or  any  land  acquired  by  way  of  exchange  or  partition,  for  the  bene- 
fit of  such  charity,  without  any  license  in  mortmain. (n)  It  is  further 
provided(o)  that  all  corporations  and  trustees  in  the  United  Kingdom 
holding  moneys  in  trust  for  any  public  or  charitable  purpose  may  invest 
such  moneys  on  any  real  security  authorized  by  or  consistent  with  the 
trusts  on  which  such  moneys  are  held,  without  being  deemed  thereby  to 
have  acquired  or  become  possessed  of  any  land  within  the  meaning  of  the 
laws  relating  to  mortmain,  or  of  any  prohibition  or  restraint  against  the 
holding  of  land  by  such  corporations  or  trustees,  contained  in  any  charter 
or  act  of  parliament.  And  no  contract  for  or  conveyance  of  any  interest 
in  land  made  bona  fide  for  the  purpose  only  of  such  security  shall  be 
deemed  void  by  reason  of  any  noncompliance  with  the  conditions  and  so- 
lemnities required  by  the  Mortmain  Act.  Provision  has  been  lately  made 
for  the  incorporation  of  trustees  of  charities  for  religious,  educational, 
literary,  scientific,  and  public  charitable  purposes,  by  means  of  a  certifi- 
cate of  registration  of  the  trustees  as  a  corporate  body,  to  be  granted 
r*7SH    *ky  tne  Charity  Commissioners  of  England  and  Wales,  with  power 

to  hold  and  convey  lands  in  the  same  manner  as  the  trustees 
might  do  without  such  incorporation. (p)  Every  joint-stock  company 
registered  under  the  Joint-Stock  Companies  Acts(g)  has  also  power  to 
hold  lands  ;(r)  but  no  company  formed  for  the  purpose  of  promoting 
art,  science,  religion,  charity,  or  any  other  like  object,  not  involving  the 
acquisition  of  gain  by  the  company  or  by  the  individual  members  thereof, 

(l)  2  Black.  Com.  269.  (m)  Stat.  7  &  8  Will.  III.  c.  37. 

(«)  Stat.  18  &  19  Vict.  c.  124,  s.  35.  (o)  Stat.  33  &  34  Vict.  c.  34. 

(p)  Stat.  35  &  36  Vict.  c.  24. 

(q)  Stat.  19  &  20  Vict.  c.  47,  amended  by  stat.  20  &  21  Vict.  c.  14,  and  21  &  22  Vict, 
c.  60,  and  now  consolidated  by  stat.  25  &  26  Vict.  c.  89,  and  amended  by  stat.  30  &  31 
Vict.  c.  131. 

(r)  Stat.  25  &  26  Vict.  c.  89,  s.  18. 


OF   AN    ESTATE    IN    FEE    SIMPLE. 


78 


shall,  without  the  sanction  of  the  Board  of  Trade,  hold  more  than  two 
acres  of  land;  but  the  Board  of  Trade  may,  by  license  under  the  hand 
of  one  of  their  principal  or  assistant  secretaries,  empower  any  such  com- 
pany to  hold  lands  in  such  quantity  and  subject  to  such  conditions  as 
they  think  fit.(s) 

By  a  statute  of  the  reign  of  Elizabeth,  conveyances  of  landed  estates, 
and   also  of  goods,1  made  for  the   purpose   of  delaying,  hindering,  or 

(s)  Stat.  25  &  26  Vict.  c.  89,  s.  21. 


1  As  respects  the  sale  and  mortgage  of 
chattels  without  delivery  of  possession,  it 
has  been  said  that  there  exist  in  the 
United  States  three  classes  of  cases.  "  In 
the  first,  which  includes  the  courts  of  the 
United  States,  of  Kentucky,  Illinois,  Ala- 
bama, Indiana,  and  Florida,  the  principle 
established  is  that  unless  possession  fol- 
low the  deed — that  is,  if  the  possession  be 
retained  inconsistently  with  the  legal  na- 
ture and  purpose  of  the  transfer — the  con- 
veyance is,  by  the  statutes  of  Elizabeth, 
fraudulent  in  law,  and  void  against  credit- 
ors and  subsequent  bona,  fide  purchasers  ; 
and  by  these  courts  it  is  held  that  in  case 
of  contingent  sales  or  mortgages,  the  re- 
taining of  possession  is  not  inconsistent 
with  the  nature  of  the  conveyance.  And 
this  was  the  law  of  Virginia  before  the  case 
of  Davis  v.  Turner,  4  Grattan  423.  The  law 
of  New  Hampshire  and  South  Carolina 
may  be  considered,  in  this  connection,  as 
resembling  this  class  more  nearly  than 
any  other.  The  second  class,  which  takes 
in  the  courts  of  New  York,  as  they  stood 
before  the  Revised  Statutes,  of  Pennsyl- 
vania, Connecticut,  and  Vermont,  differs 
from  the  first,  chiefly  in  holding  that  de- 
livery of  possession  is  necessary  as  against 
creditors,  in  cases  of  mortgages  and  con- 
tingent transfers,  as  well  as  in  cases  of 
absolute  sales  ;  they  hold  that  all  convey- 
ances are  fraudulent  in  law,  where  posses- 
sion does  not  pass  with  the  title,  unless  it 
has  been  retained  for  reasons  satisfactory 
to  the  court.  In  the  third  class,  the  dis- 
tinction taken  in  the  first,  between  abso- 
lute and  contingent  sales,  is  adopted,  but 


it  is  held  that  retaining  possession  incon- 
sistently with  the  conveyance  is  only  evi- 
dence of  fraud  for  the  jury.  This  class 
comprehends  the  courts  of  Massachusetts, 
Maine,  Ohio,  Tennessee,  Missouri,  Georgia, 
Arkansas,  Texas,  and  North  Carolina.  It 
is  believed  that  the  real  difference  in 
principle,  between  the  last  and  two  former 
classes,  is  upon  the  question  what,  in  law, 
constitutes  the  fraud  which,  under  these 
statutes  of  Elizabeth,  avoids  conveyances. 
The  definition  of  fraud  is  always  matter  of 
law;  and  the  point  really  in  issue  in  the 
controversies  that  have  taken  place  on 
this  subject  appears  to  be,  whether  this 
statutory  fraud  consists  in  the  debtor's 
merely  reserving  to  himself  a  trust  out  of 
the  property  conveyed,  or  whether,  like 
fraud  at  common  law,  it  lies  solely  in  an 
actual  design  to  cheat.  It  is  commonly 
supposed  that  the  distinction  is  merely  as 
to  the  nature  and  weight  of  the  evidence 
which  retention  and  possession  affords ; 
whether  it  raises  a  legal  presumption  of 
fraud,  of  which  the  court  are  to  take  cog- 
nizance, or  only  a  natural  presumption, 
with  which  the  jury  are  to  deal.  But  this 
distinction  appears  to  be  merely  a  deriva- 
tive one,  flowing  necessarily,  or  reason- 
ably, out  of  the  diversity  above  mentioned 
as  to  the  legal  nature  and  definition  of 
fraud,  which  is  the  essential  difference  at 
the  bottom  of  the  whole  affair."  (See 
Wallace's  note  to  Twyne's  Case,  1  Smith's 
Leading  Cases  51,  where  the  subject,  which 
is  too  extended  to  be  condensed  in  a  note 
to  an  elementary  work  like  the  present,  is 
elaborately  examined.)  R- 


78 


OF    CORPOREAL    HEREDITAMENTS. 


defrauding  creditors,  are  void  as  against  them  ;  unless  made  upon  good, 
which  here  means  valuable,  consideration,  and  bond  fide,  to  any  person 
not  having  at  the  time  of  the  conveyance  any  notice  of  such  fraud. (t) 
And,  by  a  subsequent  statute  of  the  same  reign,  voluntary  conveyances 
of  any  estate  in  lands,  tenements,  or  other  hereditaments  whatsoever, 
and  conveyances  of  such  estates  made  with  any  clause  of  revocation  at 
the  will  of  the  grantor,  are  also  void  as  against  subsequent  purchasers 
for  money  or  other  valuable  consideration. (u)  The  effect  of  this  enact- 
r;)j7Q^  ment  is  that  any  person  who  *has  made  a  voluntary  settlement 
of  landed  property,  even  on  his  own  children,  may  afterwards 
sell  the  same  property  to  any  purchaser ;  and  the  purchaser,  even 
though  he  have  full  notice  of  the  settlement,  will  hold  the  lands  without 
danger  of  interruption  from  the  persons  on  whom  they  had  been 
previously  settled.^)1     But  if  the  settlement  be  founded  on  any  val- 

(t)  Stat.  13  Eliz.  c.  5  ;  Twyne's  Case,  3  Rep.  81  a;  1  Smith's  Leading  Cases  1. 
(w)  Stat.  27  Eliz.  c.  4,  made  perpetual  by  39  Eliz.  c.  18,  s.  31. 

(x)  Upton  v.  Bassett,  Cro.  Eliz.  444;  3  Rep.  83  a;  Sugd.  Vend.  &  Pur.  586,  13th  ed. ; 
Sugd.  Pow.,  ch.  14,  8th  ed. 


1  Although  there  has  been  some  variety 
of  opinion  (Atherly  on  Marriage  Settle- 
ments 187),  if  not  of  decision,  in  England, 
upon  this  point,  the  law  may  now  be  con- 
sidered to  be  there  settled  as  stated  in  the 
text.  On  this  side  of  the  Atlantic,  while  it 
has  also  been  considered,  in  a  few  cases, 
that  "  the  subsequent  sale,  though  a  mat- 
ter ex  post  facto  merely,  gives  character  to 
the  transaction  ab  origine,  and  furnishes, 
in  protection  of  the  purchaser,  uncon- 
trollable evidence  of  an  original  intention 
to  deceive,"  Doyle  v.  Sleeper,  1  Dana 
554;  Sterry  v.  Arden,  1  Johns.  Ch.  270, 
where  Kent,  Ch.,  felt  himself  controlled  by 
the  weight  of  English  authority  ;  Marshall 
v.  Booker,  1  Yerger  15;  Cains  v.  Jones,  5 
Id.  250,  and  in  others,  that  the  subsequent 
conveyance  is  at  least  prima  facie  evidence 
that  the  first  was  fraudulent,  Lewis  v. 
Love's  Heirs,  2  B.  Monroe  346,  yet  as  a 
general  rule,  the  current  of  American 
authority  has  firmly  set  in  opposition  to 
the  English  doctrine,  and  in  favor  of  the 
position  that  a  voluntary  conveyance  is 
not  void  against  a  subsequent  purchaser, 
with  notice  of  it.  Sterry  v.  Arden,  12  Johns. 
555,  per  Spencer,  J. ;  Sanger  v.  Eastwood, 


19  Wendell  514;  Lancaster  v.  Dolan,  1 
Rawle  231  ;  Foster  v.  Walton,  5  Watts 
378  ;  Dougherty  v.  Jack,  Id.  456  ;  Speise 
v.  M'Coy,  6  Watts  &  Serg.  487  ;  Mayor  v. 
Williams,  6  Md.  242  ;  Hudnal  v.  Wilder,  4 
M'Cord  310;  Moultrie  v.  Jennings,  2 
M'Mullan  508 ;  Howard  v.  Williams,  1 
Bailey  575  ;  Bank  of  Alexandria  v.  Patton, 
1  Robinson  (Va.)  540  ;  Farmers'  Bank  v. 
Douglass,  11  Smedes  &  Marshall  548; 
Cathcart  v.  Robinson,  5  Peters  280  ;  Cor- 
prew  v.  Arthur,  15  Ala.  530.  Where, 
however,  the  purchaser  has  had  no  notice 
of  the  prior  voluntary  conveyance,  the 
latter  is  deemed  prima  facie  fraudulent,  so 
as  to  throw  upon  the  grantor  the  burden 
of  proving  its  fairness,  which  is  deemed  to 
be  impeached  from  the  mere  fact  of  the 
subsequent  conveyance.  Cathcart  v.  Rob- 
inson, Hudnal  v.  Wilder,  Bank  of  Alex- 
andria v.  Patton,  supra;  Caston  v.  Cun- 
ningham, 3  Strobhart  63 ;  Footman  v. 
Prendergrass,  3  Rich.  Eq.  33 ;  Fowler  v. 
Walrip,  10  Georgia  350,  where  it  was 
held  that  registry  of  the  voluntary  con- 
veyance was  not  notice  to  a  subsequent 
purchaser.  And  where  the  voluntary 
conveyance    is   actually  fraudulent,   it  is 


OF   AN    ESTATE    IN   FEE    SIMPLE.  79 

uable  consideration,  such  as  that  of  an  intended  marriage,  it  cannot  be 

defeated.  (#) 

The  methods  by  which  a  tenant  in  fee  simple  can  alienate  his  estate  in 
his  lifetime  will  be  reserved  for  future  consideration,  as  will  also  the  sub- 
ject of  alienation  by  testament.     As  a  tenant  in  fee  simple  may  alienate 
his  estate  at  his  pleasure,  so  he  is  under  no  control  in  his  management 
of  the  lands,  but  may  open  mines,  cut  timber,  and  commit  waste  of  all 
kinds,(z)  grant  leases  of  any  length,  and  charge  the  lands  with  the  pay- 
ment of  money  to  any  amount.     Fee  simple  estates  are  moreover  subject, 
in  the  hands  of  the  heir  or  devisee,  to  debts  of  all  kinds  contracted  by 
the  deceased  tenant.     This  liability  to  what  may  be  called  an  involun- 
tary alienation  has,  like  the  right  of  voluntary  alienation,  been  estab- 
lished by  very  slow  degrees.(a)     It  appears  that,  in  the  early  periods  of 
our  history,  the  heir  of  a  deceased  person  was  bound,  to  the  extent  of 
the  inheritance  which  descended  to  him,  to  pay  such  of  the  debts  of  his 
ancestor  as  the  goods  and  chattels  of  the  ancestor  were  not  sufficient  to 
satisfy.(J)     But  the  spirit  of  feudalism,  which  ^attained  to  such 
a  height  in  the  reign  of  Edward  I.,  appears  to  have  infringed  on 
this  ancient  doctrine ;  for  we  find  it  laid  down  by  Britton,  who  wrote  in 
that  reign,  that  no  one  should  be  held  to  pay  the  debt  of  his  ancestor, 
whose  heir  he  was,  to  any  other  person  than  the  king,  unless  he  were  by 
the  deed  of  his  ancestor  especially  bound  to  do  so.(e)    On  this  footing  the 
law  of  England  long  continued.     It  allowed  any  person,  by  any  deed 
or  writing  under  seal  (called  a  special  contract  or  specialty),  to  bind  or 
charge  his  heirs,  as  well  as  himself,  with  the  payment  of  any  debt,  or  the 
fulfillment  of  any  contract :  in  such  a  case  the  heir  was  liable,  on  the 
decease  of  his  ancestor,  to  pay  the  debt  or  fulfill  the  contract,  to  the 
value  of  the  lands  which  had  descended  to  him  from  the  ancestor,  but 
not  furthered)     The  lands  so  descended  were  called  assets  by  descent, 

(y)  Colvile  v.  Parker,  Cro.  Jac.  158  ;  Sugd.  Pow.,  ch.  14,  8th  ed. 
(z)  3  Black.  Com.  223. 

(a)  See  Co.  Litt.  191  a,  n.  (1),  vi.  9. 

(b)  Glanville,  lib.  vii.  c.  8;  Bract.  61  a;  1  Reeves's  Hist.  Eng.  Law  813.  These 
authorities  appear  to  be  express  ;  the  contrary  doctrine,  however,  with  an  account  ot 
the  reasons  for  it,  will  be  found  in  Bac.  Abr.  tit.  Heir  and  Ancestor  (F). 

(c)  Britt.  64  b. 

(d)  Bac.  Abr.  tit.  Heir  and  Ancestor  (F) ;  Co.  Litt.  376  b. 


void  as  against  a  subsequent  purchaser,  Elliott  v.  How,  10  Alab.  352.     See  passim, 

whether  with  or  without  notice.     Hudnal  note  to  Sexton  v.  Wheaton,  1  Amer.  Lead, 

v.  Wilder,  supra;  Ricker  v.  Ham,  14  Mass.  Cases  37.  R- 

137;     Clapp    v.    Tirrell,    20    Pick.    2807; 


80  OF    CORPOREAL   HEREDITAMENTS. 

from  the  French  word  assez,  enough,  because  the  heir  was  bound  only 
so  far  as  he  had  lands  descended  to  him  enough  or  sufficient  to  answer 
the  debt  or  contract  of  his  ancestor.(e)  If,  however,  the  heir  was  not 
expressly  named  in  such  bond  or  contract,  he  was  under  no  liability^/)1 
When  the  power  of  testamentary  alienation  was  granted,  a  debtor,  who 
had  thus  bound  his  heirs,  became  enabled  to  defeat  his  creditor,  by 
devising  his  estate  by  his  will  to  some  other  person  than  his  heir ;  and, 
in  this  case,  neither  heir  nor  devisee  was  under  any  liability  to  the 
creditor.(^)  Some  debtors,  however,  impelled  by  a  sense  of  justice  to 
their  creditors,  left  their  lands  to  trustees  in  trust  to  sell  them  for  the 
payment  of  their  debts,  or,  which  amounts  to  the  same  thing,  charged 
their  lands,  by  their  wills,  with  the  payment  of  their  debts.  The  cred- 
r*Q-n  itors  then  obtained  payment  by  the  bounty  of  *their  debtor;  and 
^  -"  the  Court  of  Chancery,  in  distributing  this  bounty,  thought  that 
"equality  was  equity,"  and  consequently  allowed  creditors  by  simple 
contract  to  participate  equally  with  those  who  had  obtained  bonds  bind- 
ing the  heirs  of  the  deceased. (h)  In  such  a  case  the  lands  were  called 
equitable  assets.2  At  length  an  act  of  William  and  Mary  made  void  all 
devises  by  will,  as  against  creditors  by  specialty  in  which  the  heirs  were 
bound,  but  not  further  or  otherwise  ;(*)  but  devises  or  dispositions  of  any 
lands  or  hereditaments  for  the  payment  of  any  real  and  just  debt  or 
debts  were  exempted  from  the  operation  of  the  statute.(&)  Creditors, 
however,  who  had  no  specialty  binding  the  heirs  of  their  debtor,  still  re- 
mained without  remedy  against  either  heir  or  devisee ;  unless  the  debtor 
chose  of  his  own  accord  to  charge  his  lands  by  his  will  with  the  payment 
of  his  debts ;  in  which  case,  as  we  have  seen,  all  creditors  were  equally 
entitled  to  the  benefit.  So  that,  till  within  the  last  few  years,  a  land- 
owner might  incur  as  many  debts  as  he  pleased,  and  yet  leave  behind 
him  an  unincumbered  estate  in  fee  simple,  unless  his  creditors  had  taken 

(e)  2  Black.  Com.  244;  Bac.  Abr.  tit.  Heir  and  Ancestor  (1). 
(/)  Dyer  271  a,  pi.  25  ;  Plow.  457. 
(ff)  Bac.  Abr.  ubi  sup. 

(A)  Parker  v.  Dee,  2  Cha.  Cas.  201  ;  Bailey  v.  Ekins,  7  Ves.  319  ;  2  Jarm.  Wills  544, 
1st  ed. ;  523,  2d  ed. ;  554,  3d  ed. 

(i)  Stat.  3  Will.  &  Mary,  c.  14,  s.  2,  made  perpetual  by  stat.  6  &  7  Will.  III.  c.  14. 
(k)  Stat.  3  Will.  &  Mary,  c.  14,  s.  4. 

1  So  that  in  an  action  against  him  as  side  of  the  Atlantic,  lost  much  of  its  ap- 
heir,  it  was  necessary  that  it  should  be  plication,  as  such,  from  its  adoption  into 
averred  that  he  was  named  in  and  bound  the  statute  law  of  most  of  the  States.  See 
by  the  obligation.  Brooke's  Ab.  Guaran-  Mr.  Hare's  note  to  Silk  v.  Prime,  2  Lead- 
ties,  p.  89.                                                 R.  ing  Cases  in  Equity  287.  R. 

2  This  principle  of  equity  has,  on  this 


OF   AN    ESTATE    IN    FEE    SIMPLE. 


Si 


proceedings  in  his  lifetime,  or  he  had  entered  into  any  bond  or  specialty 
binding  his  heirs.  At  length,  in  1807,  the  fee  simple  estates  of  deceased 
traders  were  rendered  liable  to  the  payment,  not  only  of  debts  in  which 
their  heirs  were  bound,  but  also  of  their  simple  contract  debts,(7)  or  debts 
arising  in  ordinary  business.  By  a  subsequent  statute,(m)  the  above 
enactments  were  consolidated  and  amended,  and  facilities  were  afforded 
for  the  sale  of  such  estates  of  deceased  persons  as  were  liable  by  law, 
*or  by  their  own  wills,  to  the  payment  of  their  debts.  But  not-  j-*g2] 
withstanding  the  efforts  of  a  Romilly  were  exerted  to  extend  so 
just  a  liability,  the  lands  of  all  deceased  persons,  not  traders  at  the  time 
of  their  death,  continued  exempt  from  their  debts  by  simple  contract,  till 
the  year  1883;  when  a  provision,  which,  but  a  few  years  before,  had  been 
strenuously  opposed,  was   passed  without   the  least  difficulty.^*)1    All 

(l)  By  stat.  47  Geo.  III.  c.  74.  (m)  Stat.  11  Geo.  IV.  &  1  Will.  IV.  c.  47. 

(re)  Stat.  3  &  4  Will.  IV.  c.  104. 


1  In  tracing  the  course  of  legislation  in 
the  United  States,  on  the  subject  of   the 
liability  of  the  lands  of  a  decedent  to  pay- 
ment of  his  debts,  it  will  be  found  greatly 
in  advance  of  English  legislation  on  the 
same  subject.     The   old  feudal  doctrines, 
which,  to  prevent  the  alienation   of  real 
estate,    cumbered    it   with    fines  and    re- 
straints,   gave  place,  there,  when    a  new 
state  of  society  demanded  that  the  right 
of  alienation  should  be  unfettered,  to  an 
immunity  of  real  estate,  which   protected 
the  purchaser  at  the  expense  of  the  cred- 
itors ;  and  the  legislative  provisions  which 
until    very    recently  existed   were    inade- 
quate to  regulate  the  equal  interest  of  both  ; 
and  it  was  not  until  the  year  1833  that,  by 
the  statute  referred  to  in  the  text,  freehold 
estates  were  made  assets  for  the  payment 
of  simple  contract  debts,  as  it  was  thought 
that  "  tbe  heir's  right  to  the  real  property 
of   his    ancestor  ought   not    to  be  disap- 
pointed by  the  claims  of  creditors."    Rom- 
illy's    Autobiography,    vol.    ii.   p.  389;    7 
Campbell's  Lives  of  the  Chancellors  266. 
On  the  other  hand,  from  the  earliest  set- 
tlement of  some  of  the  American  Colonies, 
the    doctrine  of   the  liability  of  a    dece- 
dent's lands  to  the  payment  of  his  debts, 
whether  due  by  matter  of  record,  specialty, 
or  simple  contract,  has  been  said  to  have 


grown    up    with    the    laws.     In    many    of 
them,  the  death  of  a  debtor  changed  his 
debts  into  liens,  and  a  purchaser  or  a  de- 
visee stood,  in  those  States,  as  in  Pennsyl- 
vania, in  no  better  position  than  the  ven- 
dor  or   the   testator.     Morris's  Lessee  v. 
Smith,  1  Yeates    244.     In  a   few  only  of 
the  colonies  is  this  believed  to  have  been 
otherwise.     It   has  been  assumed  by  au- 
thority entitled  to  respect,  that  real  estate 
has,  in    general,  from   the   earliest  settle- 
ment of  the  colonies,  been  liable  for  the 
debts  of  the  ancestor  in  the  hands  of  his 
devisees,    his    heirs,    and    bond,  fide   pur- 
chasers from  them  ;  4  Kent  Com.  420  ;  2 
Hilliard's    Abr.   559,  Watkins  v.  Holman, 
14    Peters    63  ;  but  in    fact  the  statute  5 
Geo.  II.  c.  7  expressly  declared  that  lands, 
&c,  in  all  the  American  Colonies,  should 
be  assets   for   the  payment  of  debts.     In 
Pennsylvania  there  were  many  statutes  to 
this  effect,  prior  to  the  year  1705.      See 
them  referred  to  in  Bellas  v.  M'Carthy,  10 
Watts  31,  per  Kennedy,  J. 

However  this  may  be,  it  may  be  said 
that,  as  a  general  rule,  in  the  United  States, 
lands  are  liable  for  the  debts  of  a  dece- 
dent, whether  due  by  matter  of  record, 
specialty,  or  simple  contract.  In  the  two 
latter  cases,  the  existence  of  the  debt  cre- 
ates no  lien  during  the  debtor's  life.    By 


82  OF   CORPOREAL   HEREDITAMENTS. 

estates  in  fee  simple,  which  the  owner  should  not  by  his  will  have 
charged  with,  or  devised  subject  to,  the  payment  of  his  debts,  were  then 
rendered  liable  to  be  administered  in  the  Court  of  Chancery,  for  the 
payment  of  all  the  just  debts  of  the  deceased  owner,  as  well  debts  due  on 
simple  contract  as  on  specialty.  But,  out  of  respect  to  the  ancient  law, 
the  act  provided  that  all  creditors  by  special  contract,  in  which  the  heirs 
were  bound,  should  be  paid  the  full  amount  of  the  debts  due  to  them 
before  any  of  the  creditors  by  simple  contract  or  by  specialty,  in  which 
the  heirs  were  not  bound,  should  be  paid  any  part  of  their  demands.  If, 
however,  the  debtor  should  by  his  last  will  have  charged  his  lands  with, 
or  devised  them  subject  to,  the  payment  of  his  debts,  such  charge  was 
still  valid,  and  every  creditor,  of  whatever  kind,  had  an  equal  right  to 
participate  in  the  produce.  Hence  arose  this  curious  result,  that  a  per- 
son who  had  incurred  debts,  both  by  simple  contract  and  by  specialty  in 
which  he  had  bound  his  heirs,  might,  by  merely  charging  his  lands  with 
the  payment  of  his  debts,  place  all  his  creditors  on  a  level,  so  far  as  they 
might  have  occasion  to  resort  to  such  lands  ;  thus  depriving  the  creditors 
by  specialty  of  that  priority  to  which  they  would  otherwise  have  been 
entitled.(o)  This  anomaly  has  now  been  remedied  by  an  act  which  pro- 
vides that,  in  the  administration  of  the  estate  of  any  person  who  shall  die 
T*831  on  or  a^ter  ^e  ^st  °^  January>  1870,  no  debt  or  liability  of  such 
person  shall  be  entitled  to  any  priority  or  preference  by  reason 
merely  that  the  same  is  secured  by  or  arises  under  a  bond,  deed,  or  other 

(o)  See  the  author's  essay  on  Real  Assets,  p.  39. 

his  death,  however,  its  quality  is  changed,  himself  may  alienate  the  land.  By  taking 
and  it  becomes  a  lien  upon  his  real  estate,  proper  proceedings,  the  creditors,  both  by 
which  descends  to  the  heir  or  passes  to  specialty  and  simple  contract,  may  obtain 
the  devisee,  subject  to  the  payment  of  all  payment  out  of  the  descended  or  devised 
the  debts  of  the  ancestor,  according  to  the  real  estate  in  the  hands  of  the  heir  or  de- 
laws  of  the  State  in  which  the  lands  are  visee  :  but  if  such  proceedings  are  not 
situated,  and  the  right  of  the  creditor  can,  taken;  the  heir  or  devisee  may  alienate; 
in  most  of  the  States,  be  enforced  against  and  in  the  hands  of  the  alienee,  whether 
the  lands  in  the  hands  of  a  bona  fide  pur-  upon  a  common  purchase  or  on  settlement, 
chaser,  within  certain  statutory  limitations  even  with  notice  that  there  are  debts  Un- 
as to  time.  paid,  the  land  is  not  liable,  though  the 
In  England,  however,  even  at  the  pres-  heir  or  devisee  remains  personally  liable 
ent  day,  "  neither  debts  by  specialty,  by  to  the  extent  of  the  value  of  the  land 
which  the  heirs  are  bound,  nor  simple  con-  alienated.  Richardson  v.  Horton,  7  Beavan 
tract  debts,  since  the  statute  3  &  4  Will.  112,  123;  4  My.  &  Cr.  268,  269;  Sugd.  on 
IV.,  constitute  a  lien  or  charge  upon  the  Vend.  834,  835;  Spackman  v.  Timbrell,  8 
land,  either  in  the  hands  of  the  debtor  or  Simons  259,  260;"  Note  to  Silk  v.  Prime,  2 
of  his  heir  or  devisee.  Notwithstanding  Lead.  Cases  in  Eq.  300.  R. 
the  existence    of  such  debts,  the    debtor 


OF    AN    ESTATE    IN   FEE    SIMPLE.  83 

instrument  under  seal,  or  is  otherwise  made  or  constituted  a  specialty  debt ; 
but  all  the  creditors  of  such  person,  as  well  specialty  as  simple  contract, 
shall  be  treated  as  standing  in  equal  degree,  and  be  paid  accordingly  out 
of  the  assets  of  such  deceased  person,  whether  such  assets  are  legal  or 
equitable:  provided  that  the  act  shall  not  prejudice  or  affect  any  lien, 
charge,  or  other  security  which  any  creditor  may  hold  or  be  entitled  to 
for  the  payment  of  his  debt.(p)  And  a  more  recent  a,ct(q)  further  pro- 
vides^) that  in  the  administration  by  the  High  Court  of  Justice  thereby 
established  of  the  assets  of  any  person  who  may  die  after  the  commence- 
ment of  that  act,(s)  and  whose  estate  may  prove  to  be  insufficient  for  the 
payment  in  full  of  his  debts  and  liabilities,  the  same  rules  shall  prevail 
and  be  observed  as  to  the  respective  rights  of  secured  and  unsecured 
creditors,  and  as  to  debts  and  liabilities  provable,  and  as  to  the  valuation 
of  annuities,  and  future  and  contingent  liabilities  respectively,  as  may  be 
in  force  for  the  time  being  under  the  law  of  bankruptcy  with  respect  to 
the  estates  of  persons  adjudged  bankrupt  ;(t)  and  all  persons  who,  in  any 
such  case,  would  be  entitled  to  prove  for  and  receive  dividends  out  of  the 
estate  of  any  such  deceased  person,  may  come  in  under  the  decree  or 
order  for  the  administration  of  such  estate,  and  make  such  claims  against 
the  same  as  they  may  respectively  be  entitled  to  by  virtue  of  that  act. 

*A  creditor  who  has  taken  legal  proceedings  against  his  debtor,  r*g_n 
for  the  recovery  of  his  debt,  in  the  debtor's  lifetime,  and  has 
obtained  the  judgment  of  a  Court  of  law  in  his  favor,  has  long  had  a  great 
advantage  over  creditors  who  have  waited  till  the  debtor's  decease.  The 
first  enactment  which  gave  to  such  a  creditor  a  remedy  against  the  lands 
of  his  debtor  was  made  in  the  reign  of  Edward  l.,(u)  shortly  before  the 
passing  of  the  statute  of  Quia  Emptores,(x)  which  sanctioned  the  full 
and  free  alienation  of  fee  simple  estates.  By  this  enactment  it  is  pro- 
vided that,  when  a  debt  is  recovered  or  acknowledged  in  the  King's 
Court,  or  damages  awarded,  it  shall  be  thenceforth  in  the  election  of  him 
that  sueth  for  such  debt  or  damages  to  have  a  writ  of  fieri  facias  unto 
the  sheriff  of  the  lands  and  goods,  or  that  the  sheriff  deliver  to  him  all 

(p)  Stat.  32  &  33  Vict.  c.  46. 

(q)  The  Supreme  Court  of  Judicature  Act,  1875,  stat.  38  &  39  Vict.  c.  77. 

(r)  Sect.  10,  repealing  sect.  25,  subsection  (1),  of  the  Supreme  Court  of  Judicature 
Act,  1873,  stat.  36  &  37  Vict.  c.  66. 

(s)  1st  November,  1875. 

(t)  See  the  chapter  on  Bankruptcy  of  Traders  in  the  author's  "  Principles  of  the  Law 
of  Personal  Property." 

(u)  Stat.  13  Edw.  I.  c.  18,  called  the  Statute  of  Westminster  the  Second. 

\x)  Stat.  18  Edw.  I.  c.  1. 


84  OF   CORPOREAL    HEREDITAMENTS. 

the  chattels  of  the  debtor  (saving  only  his  oxen  and  beasts  of  his  plough), 
and  the  one  half  of  his  land,  until  the  debt  be  levied  according  to  a  rea- 
sonable price  or  extent.  The  writ  issued  by  the  Court  to  the  sheriff, 
under  the  authority  of  this  statute,  was  called  a  writ  of  elegit  ;  so  named 
because  it  was  stated  in  the  writ  that  the  creditor  had  elected  {elegit)  to 
pursue  the  remedy  which  the  statute  had  thus  provided  for  him.Q/)  One 
moiety  only  of  the  land  was  allowed  to  be  taken,  because  it  was  neces- 
sary, according  to  the  feudal  constitution  of  our  law,  that,  whatever  were 
the  difficulties  of  the  tenant,  enough  land  should  be  left  him  to  enable 
him  to  perform  the  services  due  to  his  lord.(z)  The  statute,  it  will  be 
observed,  was  passed  prior  to  the  time  when  the  alienation  of  estates  in 
fee  simple  was  sanctioned  by  parliament ;  and  there  can  be  no  doubt  that 
r^o-}  long  after  the  passing  *of  this  statute  the  vendors  and  purchasers 
*-  of  landed  property  held  a  far  less  important  place  in  legal  con- 

sideration than  they  do  at  present.1  This  circumstance  may  account  for 
the  somewhat  harsh  construction  which  was  soon  placed  on  this  statute, 
and  which  continued  to  be  applied  to  it  until  its  replacement  by  an 
enlarged  and  amended  act  of  modern  date. (a)  It  was  held  that,  if  at  the 
time  when  the  judgment  of  the  Court  was  given  for  the  recovery  of  the 
debt,  or  awarding  the  damages,  the  debtor  had  lands,  but  afterwards  sold 
them,  the  creditor  might  still,  under  the  writ  with  which  the  statute  had 

(y)  Co.  Litt.  289  b  ;  Bac.  Abr.  tit.  Execution  (C.  2). 

(z)  Wright's  Tenures  170.  (a)  Stat.  1  &  2  Vict,  c.  110. 

1  It  is   believed  that  the  creditor  who  tion.     Sir  William  Harbert's  Case,  3  Coke 

had,  prior  to  the  late  English  statute,  ob-  12  a;    Davy  v.  Pepys,    Plowd.  441.     The 

tained  a  judgment  against  his  debtor  in  the  result  was    that  the   bond    creditor  had, 

lifetime  of  the  latter,  did  not,  to  every  in-  after  his  debtor's  death,  a  greater  security 

tent,  possess  an  advantage  over  all  cred-  than  the  judgment  creditor,  for  the  latter 

itors  who  had  not  done  so.     Although  an  by  reason   of  his  judgment   charged   the 

heir  was  only  bound  by  the  specialties  of  heir  only  as  tenant  of  the  land.     No  per- 

his  ancestor  to  the  extent  of  the  assets  by  sonal  action  could  lie  against  the  heir  on 

descent,  yet  a  specialty  creditor  acquired,  such  judgment,  and  the   only  remedy  of 

by  the  death  of  his  debtor,  some  advantage  the  creditor  was  by  writ  of  scire  facias  to 

over  the  judgment  creditor ;  for,  by  the  old  have  execution  of  the  lands,  which,  as  has 

rule  of  the  common  law,  no  recourse  what-  been  seen,  he  could,  under  the  statute  of 

ever  could  be  had  to  the  lands  of  the  debtor  Westminster,  have  had  to  a  limited  extent, 

by  means  of  execution,  and  the  statute  of  as  the  death  of  the  ancestor  did  not  alter 

Westminster   the    Second    gave   but   the  the  nature  of  the  execution  any  more  than 

right  to  have  one-half  of  them  extended  or  it  did  the  nature  of  the  debt,  Stileman  v. 

delivered  under  a  writ  of  elegit,  while  upon  Ashdown,   2   Atkins    608;    while    on   the 

the  death  of  the  debtor,  his  specialty  cred-  bond  debts,  the  creditor  could,  by  a  special 

itor  could  maintain  an  action  against  the  judgment,   have    execution    upon    all    the 

heir,  by  means  whereof  all  the  assets  by  lands  in  the  possession  of  the  heir.      R. 
descent  were  liable  to  be  taken  in  execu- 


OF   AN    ESTATE    IN    FEE    SIMPLE.  85 

furnished  him,  take  a  moiety  of  the  lands  out  of  the  hands  of  the 
purchaser.(6)  It  thus  became  important  for  all  purchasers  of  lands  to 
ascertain  that  those  from  whom  they  purchased  had  no  judgments  against 
them  ;  for,  if  any  such  existed,  one  moiety  of  the  lands  would  still 
remain  liable  to  be  taken  out  of  the  hands  of  the  purchaser  to  satisfy  the 
judgment  debt  or  damages.  It  was  also  held  that  if  the  debtor  purchased 
lands  after  the  date  of  the  judgment,  and  then  sold  them  again,  even 
these  lands  would  be  liable,  in  the  hands  of  the  purchaser,  to  satisfy  the 
claims  of  the  creditors  under  the  writ  of  elegit.{c)  In  consequence 
of  the  construction  thus  put  upon  the  statute,  judgment  debts  became 
incumbrances  upon  the  title  to  every  estate  in  fee  simple,  which  it  was 
necessary  to  discover  and  remove  previously  to  every  purchase.  To 
facilitate  purchasers  and  others  in  their  search  for  judgments,  an  alpha- 
betical docket  or  index  of  judgments  was  provided  by  an  act  of  William 
and  Mary,(d)  to  be  kept  in  each  of  the  courts,  open  to  public  inspection 
and  search.  But  by  an  enactment  of  *the  present  reign(e)  these 
dockets  have  now  been  closed,  and  the  ancient  statute  is,  with  •-  -• 
respect  to  purchasers,  virtually  repealed. 

The  rights  of  judgment  creditors  to  follow  the  lands  of  their  debtors  in 
the  hands  of  purchasers  were  remodelled  by  an  act  of  parliament  of  the 
present  reign,  passed  for  the  purpose  of  extending  the  remedies  of  cred- 
itors against  the  property  of  their  debtors. (/)  The  old  statute  extended 
only  to  one  half  of  the  lands  of  the  debtor ;  but,  by  this  act,  the  whole 
of  the  lands,  and  all  other  hereditaments  of  the  debtor,  could  be  taken 
under  the  writ  of  elegit. (g)  The  power  of  the  judgment  creditor  to  take 
lands  out  of  the  hands  of  purchasers  was  no  longer  left  to  depend  on  a 
forced  construction,  such  as  that  applied  to  the  old  statute ;  for  this  act 
expressly  extended  the  remedy  of  the  judgment  creditor  to  lands  of  which 
the  debtor  should  have  been  seised  or  possessed  at  the  time  of  entering 
up  the  judgment,  or  at  any  time  afterwards.  But,  as  we  shall  presently 
see,  this  extensive  power  has  since  been  much  curtailed.  The  judgment 
creditor  was  also  expressly  provided  with  a  remedy  in  equity,  that  is,  in 
the  Court  of  Chancery,  as  well  as  at  law. (A)     And  the  remedies  pro- 

(b)  Sir  John  De  Moleyn's  Case,  Year  Book,  30  Edw.  III.  24  a. 

'(c)  Brace  v.  Duchess  of  Marlborough,  2  P.  Wms.  492  ;  Sugd.  Vend.  &  Pur.  418,  13th 
ed. ;   3  Prest.  Abst.  323,  331,  332. 

(rf)  Stat.  4  &  5  Will.  &  Mary,  c.  20,  made  perpetual  by  stat.  1  &  8  Will.  III.  c.  36. 

(e)  Stat,  2  &  3  Vict.  c.  11,  ss.  1,  2. 

(/)  Stat.  1  &  2  Vict.  c.  110,  amended  by  stats.  2  &  3  Vict.  c.  11,  3  &  4  Vict.  c.  82,  18 
&  19  Vict.  c.  15,  and  23  &  24  Vict.  c.  38. 

(g)  Sect.  11.  (A)  Sect.  13. 


86  OF    CORPOREAL    HEREDITAMENTS. 

vided  by  the  act  were  extended,  in  their  application,  to  all  decrees, 
orders,  and  rules  made  by  the  courts  of  equity  and  of  common  law,  and 
by  the  Lord  Chancellor  or  the  Lords  Justices  in  matters  of  bankruptcy, 
and  by  the  Lord  Chancellor  in  matters  of  lunacy,  for  the  payment  to 
P*™-,    any  person  of  any  money  or  costs. (i)     But  before  purchasers, 

*mortgagees,  or  creditors  could  be  affected  under  the  provisions  of 
this  act,  the  name,  abode,  and  description  of  the  debtor,  with  the  amount 
of  the  debt,  damages,  costs,  or  money  recovered  against  him,  or  ordered  by 
him  to  be  paid,  together  with  the  date  of  registration,  and  other  particu- 
lars, were  required  to  be  registered  in  an  index  which  the  act  directed  to 
be  kept  for  the  warning  of  purchasers,  at  the  office  of  the  Court  of  Com- 
mon Pleas. (k)  This  registration  was  required  to  be  repeated  every  five 
years  ;(l)  but  the  purchaser  was  bound  if  the  judgment,  decree,  order,  or 
rule  were  registered  within  five  years  before  the  execution  of  the 'convey- 
ance to  him,  although  more  than  five  years  should  have  elapsed  since  the 
last  previous  registration. (m)  If,  however,  the  judgment,  &c,  were  not 
so  registered,  or  re-registered,  the  purchaser  was  not  affected  thereby, 
even  though  he  should  have  had  express  notice  of  its  existence  ;(n)  but 
the  judgment  creditor  did  not,  by  omitting  to  re-register,  necessarily  lose 
his  priority,  if  once  obtained,  over  subsequent  judgments,  though  duly 
registered. (o)  And,  by  a  further  enactment,  it  was  provided,  in  favor  of 
purchasers  without  notice  of  any  such  judgments,  decrees,  orders,  or  rules, 
that  none  of  such  judgments,  &c,  should  bind  or  affect  any  lands,  tene- 
ments, or  hereditaments,  or  any  interest  therein,  as  against  such  pur- 
chasers without  notice,  further  or  otherwise,  or  more  extensively  in  any 
respect,  although  duly  registered,  than  a  judgment  of  one  of  the  superior 
courts  would  have  bound  such  purchasers  before  the  last-mentioned  act, 
T*881    wnen  ^  na,d  Deen  duly  docketed  *according  to  the  law  then  in 

force. (p)  More  recently  it  was  provided^)  that  no  judgment  to 
be  entered  up  after  the  23d  of  July,  1860,  should  affect  any  land  as  to  a 

(i)  Sect.  18.  See  Jones  v.  Williams,  11  Ad.  &  Ell.  157  (E.  C.  L.  R.  vol.  39)  ;  8  Mees. 
&  Wels.  349;  Doe  v.  Amey,  8  Mees.  &  Wels.  565;  Wells  v.  Gibbs,  3  Beav.  399;  Duke 
of  Beaufort  v.  Phillips,  1  De  Gex  &  Smale  321.  As  to  the  Lords  Justices,  see  stats.  10 
&  11  Vict.  c.  102  ;  14  &  15  Vict.  c.  83.  As  to  entering  satisfaction  on  judgments,  see 
stats.  23  &  24  Vict.  c.  115,  s.  2. 

(k)  Stat.  1  &  2  Vict.  c.  110,  s.  19 ;  2  &  3  Vict.  c.  11,  s.  3  ;  18  &  19  Vict.  c.  15,  s.  10 ; 
Sugd.  Vend.  &  Pur.  423  et  seq.,  13th  ed. 

(1)  Stat.  2  &  3  Vict.  c.  11,  s.  4.  (m)  Stat.  18  &  19  Vict.  c.  15,  s.  6. 

(n)  Stat.  3  &  4  Vict.  c.  82,  s.  2  ;   18  &  19  Vict.  c.  15,  ss.  4,  5. 

(o)  Beavan  v.  The  Earl  of  Oxford,  6  De  Gex,  M.  &  G.  492. 

[p)  Stat.  2  &  3  Vict.  c.  11,  s.  5  ;  Lane  v.  Jackson,  20  Beav.  535. 

(g)  Stat.  23  &  24  Vict.  c.  38,  s.  1. 


OF    AN    ESTATE    IN    FEE    SIMPLE.  OO 

bona  fide  purchaser  for  valuable  consideration,  or  a  mortgagee  (whether 
such  purchaser.or  mortgagee  had  notice  or  not  of  such  judgment),  unless 
a  writ  or  other  due  process  of  execution  of  such  judgment  should  have 
been  issued  and  registered,  as  provided  by  the  act,  before  the  execution 
of  the  conveyance  or  mortgage  to  him,  and  the  payment  of  the  purchase 
or  mortgage  money  by  him.  And  no  such  judgment,  nor  any  writ  of 
execution  or  other  process  thereon,  was  to  affect  any  land  as  to  a  bona 
fide  purchaser  or  mortgagee,  although  execution  or  other  process  should 
have  issue  thereon  and  have  been  duly  registered,  unless  such  execution 
or  other  process  should  be  executed  and  put  in  force  within  three  cal- 
endar months  from  the  time  when  it  was  registered.  A  registry  of  writs 
of  execution  was  also  provided  \{r)  but  as  the  entry  was  required  to  be 
made  in  alphabetical  order  by  the  names  of  the  persons  in  whose  behalf 
the  judgments  were  registered,  and  not  by  the  names  of  the  debtors,  it 
was  still  necessary  to  search  for  judgments  in  the  registry  above  re- 
ferred to.(s) 

An  act  has  at  length  been  passed  which  entirely  deprives  all  future 
judgments  of  their  lien  on  real  estates.^)1  This  act,  which  was  passed 
on  the  29th  of  July,  1864,  provides  that  no  future  judgment  shall  affect 
any  land,  of  whatever  tenure,  until  such  land  shall  have  been  actually 
delivered  in  execution  by  virtue  of  a  writ  of  elegit,  or  other  lawful  author- 


(r)  Stat.  23  &  24  Vict.  c.  38,  s.  2.  (s)  Ante,  p.  86. 

(I)  Stat.  27  &  28  Vict.  c.  112. 


1  In  the  early  editions  of  this  work  the 
author  expressed  the  opinion  that  the  lia- 
bility of  lands  in  the  hands  of  purchasers 
without  notice,  to  judgment  and  crown 
debts,  was-  of  little  practical  benefit  to 
creditors  or  the  public,  and  that  its  aboli- 
tion would  be  a  great  improvement  in  the 
law.  The  passage  of  the  act  of  27  &  28 
Vict.  c.  112  would  seem  to  show  that  the 
same  opinion  was  generally  entertained  by 
the  profession,  or  at  least  by  parliament. 
In  the  United  States,  however,  where  judg- 
ments are  universally  held  to  be  liens  upon 
lauds,  the  system  has  not  met  with  the 
same  unpopularity,  and  has  been  attended 
with  very  little  practical  difficulty  or  ex- 
pense. By  statutes  in  nearly  if  not  quite 
all  the  States,  judgment  indexes  are  order- 
ed to  be  kept  by  the  clerks  of  the  various 


courts,  and  not  only  are  these  indexes  open 
to  inspection,  but  it  is  made  the  duty  of 
the  court  clerks,  for  moderate  fees,  to  give 
certificates,  under  their  seals,  of  the  judg- 
ments entered  in  their  respective  courts 
within  the  period  inquired  of.  For  any 
error  in  such  certificate  by  which  the  pur- 
chaser is  damaged,  the  officer  is  liable  on 
his  official  bond,  and  the  measure  of  dam- 
ages is  the  loss  actually  sustained  by  the 
purchaser  by  reason  of  such  error  or  omis- 
sion. Such  certificates  are  universally 
taken  on  each  conveyance,  and  form  part 
of  the  title  papers.  A  certain  period  is 
limited  by  statute  (in  most  of  the  States 
from  three  to  six  years),  beyond  which  a 
judgment  ceases  to  be- a  lien  unless  revived 
by  scire  facias  and  entered  anew  on  the 
index.  M. 


89  OF    CORPOREAL    HEREDITAMENTS. 

q  ity,  in  pursuance  of  such  judgment.(w)  In  the  construction  *of 
"-  *  the  act,  the  term  "judgment"  is  to  be  taken  to  include  regis- 
tered decrees,  orders  of  courts  of  equity  and  bankruptcy,  and  other 
orders  having  the  operation  of  a  judgment.(ic)  Every  writ,  by  virtue 
whereof  any  land  shall  have  been  actually  delivered  in  execution,  must 
be  registered  in  the  manner  provided  by  the  last  mentioned  act,(?/)  but 
in  the  name  of  the  debtor  against  whom  such  writ  or  process  is  issued, 
instead  of,  as  under  that  act,  in  the  name  of  the  creditor.  And  no  other 
registration  of  the  judgment  is  to  be  deemed  necessary  for  any  pur- 
pose.^) Every  creditor  to  whom  any  land  of  his  debtor  shall  have  been 
actually  delivered  in  execution  by  virtue  of  any  judgment,  and  whose 
writ  shall  have  been  duly  registered,  may  obtain  from  the  Chancery  Di- 
vision of  the  High  Court,  upon  petition  in  a  summary  way,  an  order  for 
the  sale  of  his  debtor's  interest  in  such  land.(«)  The  other  judgment 
creditors,  if  any,  are  to  be  served  with  notice  of  the  order  for  sale ;  and 
the  proceeds  of  the  sale  are  to  be  distributed  amongst  the  persons  who 
may  be  found  entitled  thereto,  according  to  their  priorities. (b)  And  every 
person  claiming  any  interest  in  such  land  through  or  under  the  debtor, 
by  any  means  subsequent  to  the  delivery  of  such  land  in  execution  as 
aforesaid,  is  bound  by  every  such  order  for  sale,  and  by  all  the  proceed- 
ings consequent  thereon. (c)  This  act  extends  not  only  to  judgments,  but 
also  to  statutes  and  recognizances.  Statutes  merchant  and  statutes 
staple,  which  are  here  referred  to,  are  modes  of  securing  money  that 
have  long  been  obsolete.  Recognizances  are  entered  into  before  a  court 
r*QOi  °f  record  or  a  magistrate ;  and,  like  judgments,  *they  were  a 
charge  on  lands  until  the  passage  of  this  act.(c7)  An  act  has 
been  recently  passed  to  render  judgments  obtained  in  England,  Scotland, 
and  Ireland,  effectual  in  any  other  part  of  the  United  Kingdom. (e) 

Lands  in  either  of  the  counties  palatine  of  Lancaster  or  Durham  were 
affected  both  by  judgments  of  the  courts  at  Westminster  and  also  by 
judgments  of  the  Palatine  Court. (/)     These  latter  judgments  had,  within 

(u)  Sect.  1  ;  Guest  v.  Cowbridge  Railway  Company,  V.-C.  G.  17  W.  Rep.  7;  L.  R., 
6  Eq.  619 ;  Thornton  v.  Finch,  4  Giff.  515 ;  Hatton  v.  Haywood,  L.  R.  9  Ch.  229 ;  Wells 
v.  Kilpin,  L.  R.  18  Eq.  298. 

(x)  Stat.  27  &  28  Vict.  c.  112,  s.  2.  (?/)  Stat.  23  &  24  Vict.  c.  38. 

(z)  Stat.  27  &  28  Vict.  c.  112,  s.  3.  (a)  Sect.  4. 

(A)  Sect.  5.  (c)  Sect.  6. 

(d)  See  the  author's  "Principles  of  the  Law  of  Personal  Property,"  p.  100,  5th  ed.; 
102,  6th  ed.;   105,  7th  ed.;   112,  8th  ed. ;   117,  9th  ed. 

(e)  Stat.  31  &  32  Vict.  c.  54. 
(/)  2  Wms.  Saund.  194. 


OF    AN    ESTATE    IN    FEE    SIMPLE. 


90 


the  county  palatine,  the  same  effect  as  judgments  of  the  courts  at  West- 
minster; and  an  index  for  their  registration  was  established  in  each  of 
the  counties  palatine,  similar  to  the  index  of  judgments  at  the  Com- 
mon Pleas. (g)     And  by  a  statute  of  the  present  reign, (h)  it  was  pro- 
vided that  no  judgment,  decree,  order,  or  rule  of  any  court  should  bind 
lands  in  the  counties  palatine,  as  against  purchasers,  mortgagees,  or  cred- 
itors, until  registration  in  the  court  of  the  county  palatine  in  which  the 
lands  were  situate.     And  the  same  provisions  as  to  re-registration  within 
five  years  as  applied  to  the  registry  of  the  Court  of  Common  Pleas  ap- 
plied also  to  these  registries. (i)     Lands  in  the  county  palatine  of  Chester, 
and  in  the  principality  of  Wales,  have  been  placed  by  a  modern  statute 
exclusively  within  the  jurisdiction  of  the  courts  at  Westminster  ;(&)  and 
by  another  statute(Z)  the  palatinate  jurisdiction  within   the  county  of 
Durham,  which  formerly  belonged  to  the  Bishop  of  Durham,  has  been 
transferred   to    the  crown.     The    Supreme    Court  of  Judicature  Act, 
*1873,(m)  transfers  to  the  High  Court  of  Justice  thereby  estab-    j-^-j 
lished,  the  jurisdiction  of  the  Court  of  Common  Pleas  at  Lancas- 
ter, and  of  the  Court  of  Pleas  at  Durham,(w)  and  any  jurisdiction  of  the 
Court   of  Appeal  in   Chancery  of  the  county  palatine  of  Lancaster.(o) 
But  the  jurisdiction  of  the  Court  of  Chancery  of  the  county  palatine 
of  Lancaster  is  not  thereby  abolished. 

Debts  due,  or  which  might  have  become  due,  to  the  crown,  from  per- 
sons who  we're  accountants  to  the  crown,(p)  and  debts  of  record,  or  by 
bond  or  specialty,  due  from  other  persons  to  the  crown,(g)  were,  until 
recently,  binding  on  their  estates  in  fee  simple  when  sold,  as  well  as 
when  devised  by  will,  or  suffered  to  descend  to  the  heir  at  law.1     But 

(a)  Stat.  1  &  2  Vict.  c.  110,  s.  21.         (A)  Stat.  18  &  19  Vict.  c.  15,  s.  2. 

[y  sect.  3.  (*)  Stat-  1]  Geo-  IV-  &  l  WilL  IY-  C"  7°'  9-  l4< 

(I)  Stat   6  &  7  Will.  IV.  c.  19,  amended  by  stat.  21  &  22  Vict.  c.  45. 

(m)  Stat.  36  &  37  Vict.  c.  66,  postponed  to  1st  November,  1875,  by  stat.  37  &38  Vict- 

c.  83. 

(«)  Sect.  16.     Subsections  (9)  and  (10). 

(o)  Sect.  17.     Subsection  (2).  _ 

(p)  Stat.  13  Eliz.  c.  4  ;  25  Geo.  III.  c.  35;  Co.  Litt.  191  a,  n.  (1),  vi.  9.     See  also 

stats.  1  &  2  Geo.  IV.  c.  121,  s.  10  ;  2  &  3  Vict.  c.  11,  ss.  9,  10,  11  ;  Sugd.  Vend.  &  Pur. 

436,  13th  ed.  ■ 

(q)  Stat.  33  Hen.  VIII.  c.  39,  ss.  50,  75.  But  simple  contract  debts  due  to  the  crown 
by  the  vendor  were  not  binding  on  the  purchaser,  unless  he  had  notice  of  them.  King 
v.  Smith,  Wightw.  34;.Casberd  v.  Attorney-General,  6  Price  474. 

i  And  the  king  is  entitled  to  first  execu-     taken  and  commenced  on  process  awarded 
tion,  "  so  always  that  the  king's  suit  be     for  the  said  debt  at  the  king's  suit,  before 
6 


91 


OF    CORPOREAL    HEREDITAMENTS. 


any  two(r)  of  the  Commissioners  of  the  Treasury  were  empowered,  upon 
such  terms  as  they  might  think  proper,  to  certify  by  writing  under  their 
hands,  that  any  lands  of  any  crown  debtor,  or  accountant  to  the  crown, 
should  be  held  by  the  purchaser  or  mortgagee  thereof  discharged  from 
all  further  claims  of  her  Majesty,  her  heirs  or  successors,  in  respect  of 
any  debt  or  liability  of  the  debtor  or  accountant  to  whom  such  lands 
belonged. (*)  And  a  similar  power  was  more  recently  given  to  any  two 
of  the  commissioners,  or  other  principal  officers,  of  any  public  depart- 
r*q.?n  ment  with  respect  to  any  crown  bond  or  *other  security  concern- 
L  *"-*  ing  or  incident  to  any  such  department ;  or  if  there  were  only  one 
such  commissioner  or  officer  then  the  power  was  vested  in  him.(£)  To 
obviate  the  dangerous  liability  of  purchasers  to  crown  debts,  an  index 
was  opened  at  the  Common  Pleas  of  the  names  of  crown  debtors ;  and 
lands  could  not  be  charged,  in   the  hands  of  purchasers,  with  these  lia- 

(r)  Stat.  12  &  13  Vict.  c.  89.  («)  Stat.  2  &  3  Vict.  c.  11,  s.  10. 

(t)  Stats.  16  &  17  Vict.  c.  107,  ss.  195-197  ;  23  &  24  Vict.  c.  115;  s.  1. 


judgment  given  for  the  said  other  person 
or  persons."  Stat.  33  Hen.  VIII.  c.  39, 
§74. 

By  several  acts  of  Congress  (31st  July, 
1789,  ch.  35,  \  21,  Statutes  at  large,  p.  42  ; 
4th  August,  1790,  ch.  35,  \  45,  Id.  p.  169; 
2d  May,  1792,  ch.  27,  \  18,  Id.  p.  263;  3d 
March,  1797,  ch.  20,  \  5,  Id.  p.  515;  2d 
March,  1799,  ch.  22,  \  65,  Id.  p.  676),  a 
priority  is  given  to  the  United  States,  as  a 
creditor,  over  other  creditors  in  case  of  the 
debtor's  death,  without  sufficient  assets, — 
his  bankruptcy  or  legal  insolvency, — his 
voluntary  assignment  for  the  benefit  of 
creditors, — or  of  his  being  absent,  con- 
cealed, or  absconding  ;  and  these  statutes 
■were,  in  the  cases  of  Fisher  v.  Blight,  2 
Cranch  358,  United  States  v.  Hooe,  3  Id. 
73,  Harrison  v.  Sherry,  5  Id.  289,  Prince 
v.  Bartlett,  8  Id.  431,  considered  and  held 
to  be  within  that  clause  of  the  Constitu- 
tion (Art.  1,  \  VIII.)  authorizing  Congress 
to  make  all  laws  necessary  and  proper  for 
carrying  into  execution  the  power  vested 
by  it  in  the  general  government.  Unlike 
the  English  law,  however,  no  lien  is  cre- 
ated by  these  statutes:  Fisher  v.  Blight, 
United  States  v.  llooe,  supra;  and  if  the 
debtor  have  made  a  bond  fide  conveyance 
of  his  estate,  by  sale  or  mortgage,  or  if  it 


has  been  seized  under  an  execution,  the 
property  is  divested  from  the  debtor,  and 
cannot  be  made  liable  to  the  United  States. 
Thelluson  v.  Smith,  2  Wheaton  399  ; 
Brent  v.  The  Bank  of  Washington,  10  Pe- 
ters 596.  R. 

In  addition  to  the  preference  thus  claim- 
ed by  the  United  States,  a  like  preference 
is  asserted  by  some  of  the  States  for  debts 
due  them.  Thus  in  Massachusetts  and 
New  York,  taxes  and  public  rates  are  en- 
titled to  be  paid  out  of  an  insolvent  dece- 
dent's estate  next  after  debts  preferred  by 
the  laws  of  the  United  States;  and  in  Ohio 
taxes,  and  sums  due  the  State  for  duties 
on  auction  sales,  take  precedence  of  gene- 
ral debts,  though  postponed  to  debts  due 
the  United  States,  expenses  of  funeral,  last 
sickness  and  administration,  and  allowance 
to  widow  and  children  for  support  for 
twelve  months.  Gen.  St.  Mass  (ed.  1860), 
ch.  99  ;  2  Rev.  S.  New  York,  ch.  6,  art.  2  ; 
1  Swan  and  Critchfield,  Ohio  Stat.  580. 
The  precedence  of  the  United  States,  how- 
ever, is  independent  of  State  legislation. 
U.  S.  v.  Duncan,  4  McLean  608.  On  the 
other  hand,  in  Pennsylvania,  debts  due  the 
State  are  by  statute  to  be  last  paid.  Pur- 
don's  Digest,  title  Decedents'  Estates,  pi. 
85.  M. 


OF    AN    ESTATE    IN    FEE    SIMPLE.  92 

bilities,  unless  the  name,  abode,  and  description  of  the  debtor,  with  other 
particulars,  were  inserted  in  the  proper  index.  And  from  the  31st  of 
December,  1859,  the  provisions  already  mentioned  for  the  re-registry  of 
judgments  every  five  years  were  applied  to  crown  debts ;  and  notice  of 
any  crown  debt  not  duly  re-registered  was  rendered  of  no  avail  against 
a  purchaser.(w)  But  now  no  debts  or  liabilities  to  the  crown  incurred 
after  the  1st  of  November,  1865,(z)  shall  affect  any  land  as  to  a  bona 
fide  purchaser  for  valuable  consideration  or  a  mortgagee,  whether  such 
purchaser  or  mortgagee  have  or  have  not  notice  thereof,  unless  a  writ  or 
process  of  execution  has  been  issued  and  registered  before  the  execution 
of  the  conveyance  or  mortgage  to  such  purchaser  or  mortgagee  and  the 
payment  by  him  of  the  purchase  or  mortgage  money.(y)  The  registra- 
tion is  effected  as  follows : — A  minute  of  the  name  of  the  person  against 
whom  the  writ  or  process  is  issued,  and  of  the  date  of  the  issuing  thereof, 
and  of  the  amount  for  which  it  is  issued,  is  left  with  the  senior  Master 
of  the  Common  Pleas  Division  of  the  High  Court,  Avho  forthwith  enters 
the  same  in  a  book  by  the  name,  in  alphabetical  order,  of  the  person 
against  whom  the  writ  or  process  is  issued ;  and  no  other  registration  of 
*the  writ  or  process,  or  the  debt  or  liability,  is  now  necessary  for  p^gg-i 
any  purpose.^) 

Actions  at  law  and  suits  in  equity  respecting  the  lands  will  also  bind 
a  purchaser  as  well  as  the  heir  or  devisee ;  that  is,  he  must  abide  by  the 
result,  although  he  may  be  ignorant  that  any  such  proceedings  are  de- 
pending.^)1 A  provision  has  accordingly  been  made  for  the  registration 
of  every  Us  pendens  ;  and  no  Us  pendens  binds  a  purchaser  or  mortgagee 
without  express  notice  thereof,  unless  and  until  it  is  duly  registered ; 
and  the  registration  to  be  binding  must  be  repeated  every  five  years.(6) 

(u)  Stats.  2  &  3  Vict.  c.  11,  s.  8;  22  &  23  Vict.  c.  35,  s.  22.  Purchasers  were  in- 
debted for  this  protection  to  the  late  Lord  St.  Leonards. 

(x)  Stat.  28  &  29  Vict.  c.  104,  s.  4.  (y)  Sect.  48.  (z)  Sect.  49. 

(a)  Co.  Litt.  344  b;  Anon.,  1  Vera.  318;  Hiern  v.  Mill,  13  Ves.  120;  3  Prest.  Abst. 
354  ;   Bellamy  v.  Sabine,  1  De  Gex  &  Jones  566. 

(6)  Stat.  2  &  3  Vict.  c.  11,  s.  7. 

i  The  equity  doctrine  of  notice  from  fas  279;    Hurlbut    v.    Butenop,    27    Cal.    50; 

pendens  was  introduced  in  this  country  by  Tongue  v.  Morton,   6  Har.  &  Johns.  21; 

the  decision  of  Chancellor  Kent  in  Murray  Green  v.  White,  7  Blackf.  242 ;  Scarlett  v. 

v.  Ballou,  1  Johns.  Ch.  566,  and  has  been  Gorham,    28    111.  319;  Cooley  v.  Brayton, 

generally  adopted.     Diamond  v.  Lawrence  16  Iowa  10.     And  see  Judge  Hare's  note 

County,  1  Wright  356 ;  Chaudron  v.  Magee,  to  Le  Neve  v.  Le  Neve,  2  Ldg.  Cas.  in  Eq. 

8    Ala.    570;    Edwards   v.   Banksmith,   35  192,  4th  Am.  ed. 
Georgia  213;    Ownings  v.  Myers,  3    Bibb 


93  OF    CORPOREAL    HEREDITAMENTS. 

And  the  Court  before  whom  the  property  sought  to  be  bound  is  in  litiga- 
tion is  now  empowered,  on  the  determination  of  the  Us  pendens,  or  during 
its  pendency  if  satisfied  that  the  litigation  is  not  prosecuted  bona  fide, 
to  order  the  registration  to  be  vacated  without  the  consent  of  the  party 
by  whom  the  lis  pendens  was  registered. (c)  The  index  of  pending  suits, 
together  with  the  indexes  of  writs  of  execution,  are  accordingly  searched 
previously  to  every  purchase  of  lands ;  and,  if  the  name  of  the  vendor 
should  be  found  in  either,  the  debt  or  liability  must  be  got  rid  of 
before  the  purchase  can  be  safely  completed.1 

Another  instance  of  involuntary  alienation  for  the  payment  of  debts 
occurs  on  the  bankruptcy  of  any  person,  in  which  event  the  whole  of  his 
freehold,  as  well  as  his  personal  estate,  is  now  vested  in  the  creditors' 
trustee,  by  virtue  of  his  appointment,  in  trust  for  the  whole  body  of  the 
r-^q  ,-■  creditors. (d)  On  the  insolvency  of  any  person,  his  whole  estate 
formerly  vested  in  the  provisional  assignee  of  the  Court  for  the 
Relief  of  Insolvent  Debtors,  from  whom  it  was  transferred  to  assignees 
appointed  by  the  Court,  vesting  in  them  by  virtue  of  their  appointment, 
and  without  any  conveyance,  in  trust  for  the  benefit  of  the  creditors  of 
the  insolvent,  according  to  the  provisions  of  the  act  for  amending  the 
laws  for  the  relief  of  insolvent  debtors. (e)  The  whole  of  these  laws  are 
however  now  repealed,  and  all  debtors,  whether  traders  or  not,  are  sub- 
ject to  the  provisions  of  the  last  act  to  consolidate  and  amend  the  law  of 
bankruptcy. (/) 

(c)  Stat.  30  &  31  Yict.  c.  47,  s.  2. 

(d)  Stat.  32  &  33  Vict.  c.  71.     The  former  acts  are  repealed  by  stat.  32  &  33  Vict, 
c.  83. 

(e)  1  &  2  Vict.  c.  110,  s.  23  et  seq.     See  also  5  &  6  Vict.  c.  116  ;  7  &  8  Vict.  c.  96 ; 
10  &  11  Vict.  c.  102. 

(/)  Stat.  32  &  33  Vict.  c.  71.     See  the  chapter  on  the  Bankruptcy  of  Non-traders  in 
the  author's  "  Principles  of  the  Law  of  Personal  Property." 

1  In  Pennsylvania  no  purchaser  or  mort-  St.,  ch.  4,  $  132.     In  Iowa  the  filing  of  a 

gagee  is  affected  with  notice  of  any  action  petition  affecting  real  estate  is  notice  as 

to  recover  real  estate  or  compel  a  convey-  to   land   in   the   county   in   which   suit  is 

ance  thereof  unless  such  action  is  indexed  brought;  and  if  the  lands  are  in  another 

in    a  special    book    called   the    ejectment  county,  the  plaintiff  may  file  a  notice  in 

index.     Act  of  April   22,   1856,  Purdon's  the  county  where  the  lands  are  situated 

Dig.  title  Ejectment.     In  New  York  the  with  the  same  effect  as  if  the  suit  had  been 

plaintiff  may  file  a  notice  containing  the  brought  there.     Rev.  of  I860,  sects.  2842, 

names   of  the   parties,   the   object   of  the  2843.    Statutes  somewhat  similar  to  these, 

action,  and  a  description  of  the  property,  modifying  the  strict  rule  of  the  common 

and  a  purchaser  is  only  affected  with  con-  law,  are  believed  to  exist  in  many  of  the 

structive  notice  from  this  filing.     3  Rev.  States.  M. 


OF   AN    ESTATE    IN    FEE    SIMPLE.  94 

So  inherent  is  the  right  of  alienation  of  all  estates  (except  estates  tail, 
in  which,  as  we  have  seen,  the  right  is  only  of  a  modified  nature),  that 
it  is  impossible  for  any  owner,  by  any  means,  to  divest  himself  of  this 
right.  And  in  the  same  manner  the  liability  of  estates  to  involuntary 
alienation  for  payment  of  debts  cannot  by  any  means  be  got  rid  of.  So 
long  as  any  estate  is  in  the  hands  of  any  person,  so  long  does  his  power 
of  disposition  continue,^)1  and  so  long  also  continues  his  liability  to  have 
the  estate  taken  from  him  to  satisfy  the  demands  of  his  creditors. (A) 
When,  however,  lands  or  property  are  given  by  one  person  for  the  benefit 
of  another,  it  is  possible  to  confine  the  duration  of  the  gift  within  the 
period  in  which  it  can  be  personally  enjoyed  by  the  grantee.  Thus  land 
or  any  other  property  may  be  given  to  trustees  in  trust  for  A.  until  he 
shall  dispose  of  the  same,  or  shall  become  *bankrupt,  or  until  any 
act  or  event  shall  occur  whereby  the  property  might  belong  to  any  L  J 
other  person  or  persons  ;(i)  and  this  is  frequently  done.  On  the  bankruptcy 
of  A.,  or  on  his  attempting  to  make  any  disposition  of  the  property,  it  will 
in  such  a  case  not  vest  in  the  trustee  for  his  creditors,  or  follow  the  intended 
disposition ;  but  the  interest  which  had  been  given  to  A.  will  thenceforth 
entirely  cease ;  in  the  same  manner  as  where  lands  are  given  to  a  person 
for  life,  his  interest  terminates  on  his  decease.2     But  although  another 

(g)  Litt.  s.  360 ;  Co.  Litt.  206  b,  223  a.       (h)  Brandon  v.  Robinson,  18  Ves.  429,  433. 
ft)  Lockyer  v.  Savage,  2  Str.  94V. 

1  So  that  any  condition  in  restraint  of  its  or  involuntary  alienation — by  voluntary 
alienation  is  void.  De  Peyster  v.  Michael,  alienation,  as  by  an  assignment  for  their 
2  Selden  (N.  Y.)  467  ;  Schermerhorn  v.  benefit — by  involuntary  alienation,  as  by 
Myers,  1  Denio  448  ;  Walker  v.  Vincent,  7  sale  under  execution.  Thus  in  Brandon 
Harris  369  ;  Reifsnyder  v.  Hunter,  Id.  41  ;  v.  Robinson,  18  Vesey  429,  there  was  a 
Note  to  Dumpor's  Case,  1  Smith's  Leading  bequest  to  trustees  to  invest  money,  and 
Cases,  99,  6th  Am.  Ed.                            R.  pay  the  dividends  from  time  to  time  into 

2  "To  allow  a  donor  to  impose  a  restraint  the  proper  hands  of  the  testator's  son,  or 
on  the  alienation  of  a  vested  interest,  co-  upon  his  own  receipt,  to  the  intent  the 
extensive  with  its  duration,  is  to  permit  tbe  same  should  not  be  grantable,  transfer- 
creation  of  a  right  of  property  apart  from  able,  or  otherwise  assignable,  by  way  of 
its  incidents,  and  to  authorize  the  donee  to  anticipation  of  any  unreceived  payments, 
hold  the  gift  for  the  purpose  of  enjoyment,  or  of  any  part  thereof,  with  a  remainder 
freed  from  the  duty  of  applying  it  in  dis-  to  his  next  of  kin  ;  and  it  was  held  by 
charge  of  his  obligations."  Mr.  Hare's  note  Lord  Eldon  that  his  assignees  in  bank- 
to  Dumpor's  Case,  1  Smith's  Leading  Cases  ruptcy  were  entitled  to  his  interest  during 
113.  Hence,  the  English  law  is  strict  in  life.  This  case  was  followed  by  Graves  v. 
forbidding  the  existence  of  a  continuing  Dolphin,  1  Simons  66;  Green  v.  Spicer,  1 
trust  for  a  debtor's  benefit,  and  unless  the  Russell  &  Mylne  395,  and  many  others ; 
estate  be  guarded  by  such  a  limitation  over,  and  its  principle  has  been  carried  so  far 
as  is  noticed  in  the  text,  it  can  be  reached  that  the  distinction  is  well  settled,  and 
by  creditors  claiming  either  by  voluntary  a  limitation   over  in  case  of  a  charge  or 


95 


OF    CORPOREAL    HEREDITAMENTS. 


person  may  make  such  a  gift  for  A.'s  benefit,  A.  would  not  be  allowed 
to  make  such  a  disposition  of  his  own  property  in  trust  for  himself.(fc) 

(k)  Lester  v.  Garland,  5  Sim.  205;  Phipps  v.  Lord  Ennismore,  4  Russ.  131.  See, 
however,  as  to  a  restriction  on  a  man's  own  alienation,  the  case  of  Brooke  v.  Pearson, 
27  Beav.  181. 


assignment  will  not  take  effect  where  the 
cestui  que  trust  commits    an  act  of  bank- 
ruptcy, as  the  alienation  is  not  voluntary, 
but  by  the  act  of  law.     Shee  v.  Hall,  13 
Vesey  104;  Rockford  v.  Hackman,  9  Hare 
475.     So    in   New  York,    in    the    case    of 
Hallet  v.  Thompson,  5  Paige  586,  where 
executors  were  directed  to  retain  a  legacy 
and  pay  the  annual  interest  thereof  to  the 
legatee,  unless    he    should,  by  a   written 
instrument,   require   the   payment   of  the 
principal    to    himself,   in  which  case   the 
whole  was  to  be  paid  to  him,  upon  a  bill 
filed  by  a  creditor,  to  compel  the  execu- 
tion  of  such  an   instrument,  a   demurrer 
for   want    of   equity    was    overruled,    the 
chancellor   having  no   doubt   that,   inde- 
pendently of  the  provisions  of  the  Revised 
Statutes  on  the  subject,  it  would  be  the 
duty  of  the  court  to  compel  the  execution 
of  this   beneficial   trust  power  to  enable 
the  creditors  to  obtain  payment  of  the  leg- 
acy.    [In  this  State,  however,  the  statute 
provides  for  a  creditor's  bill  to  reach  and 
subject  to  execution  property  held  in  trust 
for  any  debtor,  "  except  where  such  trust 
has  been  created  by,  or  the  fund  so  held 
in  trust  has  proceeded  from,  some  person 
other  than  the  defendant   [debtor]    him- 
self," and  it  has  been  held  that  the  entire 
subject  is  covered   by  this  enactment,  and 
the  courts  have  no  power  except  what  it 
gives.     Bramhall   v.   Ferris,   14  N.  Y.  41  ; 
Stuart   v.   McMartin,  5  Barb.  444 ;  Camp- 
bell v.  Foster,  35  N.  Y.  361.     M.] 

So  in  Massachusetts,  where  a  testator 
had  devised  the  use  of  a  farm,  not  subject 
to  conveyance  or  attachment,  the  restric- 
tion was  held  to  be  repugnant  to  the  es- 
tate, and  therefore  void.  Blackstone  v. 
Davis,  21  Pickering  42  ;  Hall  v.  Tafts,  18 
Id.  155;  and  it  is  believed  that  in  nearly 
all  of  the  United  States,  the  English  doc- 
trine would  be  recognized  and  enforced. 


Dick  v.  Pitchford,  1   Dev.  &  Batt.  Ch.  (N. 
Car.)  480. 

In  Pennsylvania  the  case  of  Brandon  v. 
Robinson  has  been  cited  with  approbation 
as  applied  to  voluntary  alienations,  and  its 
principle  held  to  be  equally  operative  in 
the   case   of  an  unmarried  or  a  widowed 
female,  as  in  that  of  a  male  adult.     Smith 
v.  Starr,  3  Wharton  62  ;   Harrison  v.  Bro- 
laskey,  8  Harris  302  ;  Kepple's  Appeal,  3 
P.  F.  Smith  211  ;  McBride  v.  Smith,  4  P. 
F.  Smith  246.     [Unless  in  the  case  of  a 
female  unmarried  but  in  immediate  con- 
templation of  marriage,  Wells  v.  McCall, 
14  P.  F.  Smith  207.     And  it  has  been  held, 
that  a  trust  for  the  separate  use  of  a  mar- 
ried woman  ceased  on  her  discoverture,  and 
was  not  revived  on  her  second  marriage, 
and  hence  that  her  trustee  under  an  assign- 
ment made  by  her  second  husband  and  her- 
self was  entitled  to  the  estate,  as  against 
the  trustees  under  the  will   of  its   donor. 
Hamersly  v.  Smith,  4  Wharton  126  ;  Hemp- 
hill v.  Hurford,  3  W.  &  S.  216  ;  Hepburn'.s 
Appeal,  15  P.  F.  Smith  472.     But  see  the 
remarks  of  Read,  J.,  on  the  case  of  Har- 
rison v.  Brolaskey,  in  Girard  Ins.  Co.  v. 
Chambers,  10  Wright  490,  and  the  case  of 
Shankland's  Appeal,  11  Wright  113.      M.] 
But  while  the  English  law  has  thus  been 
recognized    in   Pennsylvania,   as   respects 
voluntary  alienation,  it  has,   at  the   same 
time,  been  there  held,  and  must  be  con- 
sidered as  now  settled,  that  an  estate  may 
be  limited  in  trust  for  a  debtor,  so  that  it 
shall  be  free  from  involuntary  alienation  at 
the  suit  of  his  creditors,  whether  the  in- 
strument do  or  do  not  contain  a  limitation 
over,  upon  such  an  event.     Fisher  v.  Tay- 
lor, 2  Rawle  33  ;   Ashurst  v.  Given,  5  W. 
&  S.  323  ;  Vaux  v.  Parke,  7  Id.  19 ;  Norris 
v.  Johnson,  5  Barr  289  ;  Eyrick  v.  Hetrick, 
1  Harris  491  ;  Barnett's  Appeal,  10  Wright 
399-402;    Shankland's  Appeal,  11  Wright 


OF   AN    ESTATE    IN    FEE    SIMPLE.  95 

An  exception  to  this  rule  of  law  occurs  in  the  case  of  a  woman,  who 
is  permitted  to  have  property  settled  upon  her  in  such  a  way  that 
she  cannot  when  married  make  any  disposition  of  it  during  the 
coverture  or  marriage ;  but  this  mode  of  settlement  is  of  comparatively 
modern  date.(?)  There  are  also  certain  cases  in  which  the  personal 
enjoyment  of  property  is  essential  to  the  performance  of  certain  public 
duties,  and  in  which  no  alienation  of  such  property  can  be  made ; 
thus  a  benefice  with  cure  of  souls  cannot  be  directly  charged  or  encum- 
bered ;{m)  so  offices  concerning  the  administration  of  justice,  and  pensions 
and  salaries  given  by  the  state  for  the  support  of  the  grantee  in  the 
performance  of  present  or  future  duties,  cannot  be  aliened  ;(n)  r*qfii 
*though  pensions  for  past  services  are,  generally  speaking,  not 
within  the  rules. (o)1 

(l)  Brandon  v.. Robinson,  18  Ves.  434;  Tullett  v.  Armstrong,  1  Beav.  1  ;  4  M.  &  Cr. 
390;  Scarborough  v.  Borman,  1  Beav.  34;  4  M.  &  Cr.  377. 

(to)  Stats.  13  Eliz.  c.  20  ;  57  Geo.  III.  c.  99,  s.  1  ;  1  &  2  Vict.  c.  106,  s.  1  ;  Shaw  v. 
Pritchard,  10  Barn.  &  Cress.  241  (E.  C.  L.  R.  vol.  21)  ;  Long  v.  Storie,  3  De  Gex  &  Smale 
308  ;  Hawkins  v.  Gathercole,  6  De  Gex,  M.  &  G.  1. 

(re)  Flarty  v.  Odium,  3  T.  Rep.  681  ;   stats.  5  &  6  Edw.  VI.  c.  16  ;  49  Geo.  III.  c.  126. 

(o)  McCarthy  v.  Goold,  1  Ball  &  Beatty  387  ;  Tunstal  v.  Boothby,  10  Sim.  542.  But 
see  statutes  47  Geo.  III.  sess.  2,  c.  25,  s.  4,  and  11  Geo.  IV.  &  1  Will.  IV.  c.  20,  s.  47  ; 
Lloyd  v.  Cheetham,  3  Giff.  171  ;  Heald  v.  Hay,  3  Giff.  467. 

113.  [And  it  seems  that  the  same  is  held  family  has  been  supported  in  several  States  : 
to  be  the  law  in  Connecticut:  Leavitt  v.  Markham  v.  Guerrant,  4  Leigh  279;  John- 
Beirne,  21  Conn.  8 ;  Virginia:  Markham  v.  son  v.  Zane's  Trustees,  11  Grattan  552; 
Guerrant,  4  Leigh  279;  Johnson  v.  Zane's  Hill  v.  McRae,  27  Ala.  175.  M.]  R. 
Trustees,  11  Grattan  552  ;  Kentucky :  Pope  J  Thus  equity  will  not  give  effect  to  the 
v.  Elliott,  8  B.  Monroe  56  ;  Rowan's  Cred-  assignment  of  the  half-pay  or  full  pay  of 
itors  v.  Rowan's  Heirs,  2  Duvall  412;  New  an  officer  in  the  army:  Stone  v.  Lidder- 
Jersey, where  a  statute  exists  similar  to  that  dale,  2  Anstruther  533;  Priddy  v.  Rose,  3 
of  New  York,  noticed  above:  Frazier  v.  Merivale  102  ;  nor  to  the  salary  of  a  parlia- 
Barnum,  4  C.  E.  Green  316  ;  and  Alabama  :  mentary  counsel  for  the  treasury  :  Cooper 
Hill  v.  McRae,  27  Ala.  175.  M.]  Between  v.  Reilly,  2  Simons  560;  and  in  Davis  v. 
those  cases  on  the  one  hand,  and  those  The  Duke  of  Marlborough,  1  Swanston  74, 
cited  in  the  previous  paragraph  on  the  it  was  held  that  the  pension  granted  by 
other,  it  is  doubtful  what  effect  would  be  parliament  for  the  more  honorable  support 
given  to  an  assignment  by  such  a  debtor  of  the  dignities  of  the  Duke  of  Marlborough 
for  the  benefit  of  his  creditors.  The  point  and  his  posterity  was  inalienable  :  Green- 
was  noticed  at  the  close  of  the  decision  in  fell  v.  Dean  and  Canons  of  Windsor,  2 
Vaux  v.  Parke,  but  no  opinion  pronounced  Beavan  550.  [So  a  license  to  keep  a  ferry 
upon  it.  [It  is  held,  however,  in  Pennsyl-  under  the  laws  of  Massachusetts  is  not  as- 
vania  that  a  man  cannot  create  such  a  signable.  The  Maverick,  Sprague  23.  M.] 
trust  for  his  own  benefit :  Mackason's  Ap-  Prize-money,  however,  has  been  held  to 
peal,  6  Wright  330  :  and  this  appears  to  be  be  assignable  before  any  interest  had  vest- 
the  general  rule,  though  such  a  trust  for  ed  by  grant  of  the  crown.  Alexander  v. 
the  benefit  of  the  grantor  and  his  wife  or  The  Duke  of  Wellington,  2  Russell  &  Mylne 


96  OF    CORPOREAL    HEREDITAMENTS. 

In  addition  to  the  interests  which  may  be  created  by  the  alienation, 
either  voluntary  or  involuntary,  there  are  certain  rights  conferred  by 
law  on  husbands  and  wives  in  each  other's  lands,  by  means  of  which  the 
descent  of  an  estate,  from  an  ancestor  to  his  heir,  may  partially  be  de- 
feated. These  rights  will  be  the  subject  of  a  future  chapter.  If,  how- 
ever, the  tenant  in  fee  simple  should  not  have  disposed  of  his  estate  in 
his  lifetime,  or  by  his  will,  and  if  it  should  not  be  swallowed  up  by  his 
debts,  his  lands  will  descend  (subject  to  any  rights  of  his  wife)  to  the  heir 
at  law.  The  heir,  as  we  have  before  observed,^)  is  a  person  appointed 
by  the  law.  He  is  called  into  existence  by  his  ancestor's  decease,  for  no 
man  during  his  lifetime  can  have  an  heir.  Nemo  est  hceres  viventis.  A 
man  may  have  an  heir  apparent,  or  an  heir  presumptive,  but  until  his 
decease  he  has  no  heir.  The  heir  apparent  is  the  person  who,  if  he 
survive  the  ancestor,  must  certainly  be  his  heir,  as  the  eldest  son  in  the 
lifetime  of  his  father.  The  heir  presumptive  is  the  person  who,  though 
not  certain  to  be  heir  at  all  events,  should  he  survive,  would  yet  be  the 
heir  in  case  of  the  ancestor's  immediate  decease.  Thus  an  only  daugh- 
ter is  the  heiress  presumptive  of  her  father :  if  he  were  now  to  die,  she 
would  at  once  be  his  heir ;  but  she  is  not  certain  of  being  heir ;  for  her 
father  may  have  a  son,  who  would  supplant  her,  and  become  heir  appa- 
rent during  the  father's  lifetime,  and  his  heir  after  his  decease.  An 
r*Q7i  ne"'  at  law  1S  tne  onty  Person  m  whom  the  *law  of  England  vests 
property,  whether  he  will  or  not.  If  I  make  a  conveyance  of  land 
to  a  person  in  my  lifetime,  or  leave  him  any  property  by  my  will,  he  may, 

(p)  Ante,  p.  64. 

35.  So  compensation  for  extra  services  or  "  The  correct  distinction,"  said  Parke,  B., 
for  injuries  inflicted  by  vessels  of  a  foreign  "  made,  in  the  cases  on  this  subject,  is  that 
country,  though  before  the  treaty  or  vote  a  man  may  always  assign  a  pension  given 
of  Congress,  necessary  for  that  purpose,  to  him  entirely  as  a  compensation  for  past 
Comegys  v.  Vasse,  7  Peters  196  ;  Milnor  v.  services,  whether  granted  to  him  for  life,  or 
Metz,  16  Id.  221  ;  Couch  v.  Delaplaine,  2  merely  during  the  pleasure  of  others.  In 
Comstock  397.  And  so  of  a  pension  granted  such  a  case,  the  assignee  acquires  a  title  to 
by  government  in  compensation  for  the  it,  both  in  equity  and  at  law,  and  may  re- 
loss  of  a  place  in  the  customs.  Tunstall  cover  back  any  sum  received  in  respect  of 
v.  Boothby,  10  Simons  542.  In  Brackett  v.  it  by  the  assignor,  after  the  date  of  the  as- 
Blake,  8  Metcalf  355,  it  was  held  that  an  signment.  But  where  the  pension  is  grant- 
assignment  of  the  quarter's  salary  of  a  city  ed,  not  exclusively  for  past  services,  but 
marshal,  who  was  annually  appointed  by  as  a  consideration  for  some  continuing 
the  corporation,  made  during  the  current  duty  or  service,  although  the  amount  of  it 
quarter,  was  valid.  [So  also  an  assign-  may  be  influenced  by  the  length  of  the 
ment  of  a  month's  wages  under  an  existing  service  which  the  party  has  already  per- 
appointment  as  city  watchman  was  held  formed,  it  is  against  the  policy  of  the  law 
good  for  tin'  wages  of  the  current  month  :  that  it  should  be  assignable."  Wells  v. 
Macomber   v.    Doane,    2    Allen   541.     M.]  Foster,  8  Meeson  &  Welsby  152.            R. 


OF   AN    ESTATE    IN    FEE    SIMPLE.  97 

if  he  pleases,  disclaim  taking  it,  and  in  such  case  it  will  not  vest  in  him 
against  his  will.(^)     But  an  heir  at  law,  immediately  on  the  decease  of 
his  ancestor,  becomes  presumptively  possessed,  or  seised  in  law,  of  all  his 
lands. (r)     No  disclaimer  that  he  may  make  will  have  any  effect,  though, 
of  course,  he  may,  as  soon  as  he  pleases,  dispose  of  the  property  by  an 
ordinary  conveyance.     A  title  as  heir  at  law  is  not  nearly  so  frequent 
now  as  it  was  in  the  times  when  the  right  of  alienation  was  more  restricted. 
And  when  it  does  occur,  it  is  often  established  with  difficulty.     This  diffi- 
culty arises  more  from  the  nature  of  the  facts  to  be  proved  than  from 
any  uncertainty  in  the  law.     For  the  rules  of  descent  have  now  attained 
an  almost  mathematical  accuracy,  so  that,  if  the  facts  are  rightly  given, 
the  heir  at  law  can  at  once  be  pointed  out.     The  accuracy  of  the  law  has 
arisen   by  degrees,  by  the  successive  determination  of  disputed  points. 
Thus,  we  have  seen  that,  in  the  early  feudal  times,  an  estate  to  a  man 
and  his  heirs  simply,  which  is  now  an  estate  in  fee  simple,  was  descend- 
ible only  to  his  offspring,1  in  the  same  manner  as  an  estate  tail  at  the  pres- 
ent day  ;  but  in  process  of  time  collateral  relations  were  admitted  to  suc- 
ceed.    When  this  succession  of  collaterals  first  took  place  is  a  question 
involved  in  much  obscurity  ;  we  only  know  that  in  the  time  of  Henry  II. 
the  law  was  settled  as   follows  : — In  default  of  lineal   descendants,  the 
brothers  and  sisters  came  in ;  and  if  they  were  dead,  their  children  ;  then 
the  uncles  and  their  children ;  and  then  the  aunts  and  their  children ; 
males  being  always  *preferred  to  females.(s)    Subsequently,  about    pggn 
the  time  of  Henry  lll.,{t)  the  old  Saxon  rule,  which  divided  the 
inheritance  equally  amongst  all  males  of  the  same  degree,  and  which  had 
hitherto  prevailed  as  to  all  lands  not  actually  the  subjects  of  feudal 
tenure,(w)  gave  place  to  the  feudal  law,  introduced  by  the  Normans,  of 
descent  to  the  eldest  son  or  eldest  brother ;  though  among  females  the 
estate  was  still  equally  divided,  as  it  is  at  present.     And,  about  the  same 
time,  all  descendants  in  infinitum  of  any  person,  who  would  have  been 
heir  if  living,  were  allowed  to  inherit  by  right  of  representation.     Thus, 

(q)  Nicloson  v.  Wordsworth,  2  Swanst.  365,  372. 

(r)  Watkins  on  Descents  25,  26  (4th  ed.  34). 

(s)  1  Reeves's  Hist.  Eng.  Law  43. 

(t)  1  Reeves's  Hist.  310;  2  Black.  Com.  215;  Co.  Litt.  191  a,  note  (1),  vi.  4. 

(w)  Clements  v.  Sandaman,  1  P.  Wms.  64;   2  Lord  Raymond  1024;   1  Scriv.  Cop.  53. 

1  The  first  notice  of  the  law  of  primo-  Henry  II.  the  eldest  son  was  sole  heir  of 

geniture  in  England  was  in   the  reign  of  lands  held  on  military  tenure  ;  though  land 

Henry  I.  (Leg.  Hen.  I.  c.  70),  when  it  was  held  by  free  socage  tenure  descended,  as 

declared  that  the  capital  fief  of  the  father  before,  to  all  the  sons  equally.     Glanville, 

should  go  to  the  eldest  son.    In  the  reign  of  vii.  c.  3.                                                     R. 


98  OF    CORPOREAL    HEREDITAMENTS. 

if  the  eldest  son  died  in  the  lifetime  of  his  father,  and  left  issue,  that 
issue,  though  a  grandson  or  granddaughter  only,  was  to  be  preferred  in 
inheritance  before  any  younger  son. (a:)  The  father,  moreover,  or  any 
other  lineal  ancestor,  was  never  allowed  to  succeed  as  heir  to  his  son  or 
other  descendants ;  neither  were  kindred  of  the  half-blood  admitted  to 
inherit. (y)  The  rules  of  descent,  thus  gradually  fixed,  long  remained 
unaltered.  Lord  Hale,  in  whose  time  they  had  continued  the  same  for 
above  400  years,  was  the  first  to  reduce  them  to  a  series  of  canons  ;(z) 
which  were  afterwards  admirably  explained  and  illustrated  by  Black- 
stone,  in  his  well-known  Commentaries ;  nor  was  any  alteration  made 
till  the  enactment  of  the  act  for  the  amendment  of  the  law  of  inherit- 
ance,^) a.d.  1833.  By  this  act,  amongst  other  important  alterations, 
r*qqi  tne  fatner  is  neir  to  h^  son5  supposing  the  latter  to  leave  *no 
issue ;  and  all  lineal  ancestors  are  rendered  capable  of  being 
heirs  ;(b)  relations  of  the  half-blood  are  also  admitted  to  succeed,  though 
only  on  failure  of  relations  in  the  same  degree  of  the  whole  blood. (c) 
The  act  has,  moreover,  settled  a  doubtful  point  in  the  law  of  descent  to 
distant  heirs.  The  rules  of  descent,  as  modified  by  this  act,  will  be 
found  at  large  in  the  next  chapter. 

(x)  1  Reeves's  Hist.  310.  (y)  2  Black.  Com.  c.  14. 

(z)  Hale's  Hist.  Com.  Law,  6th  ed.,  p.  318  et  seq. 

(a)  Stat.  3  &  4  Will.  IV.  c.  106,  amended  by  stat.  22  &  23  Vict.  c.  35,  ss.  19,  20. 

\b)  Sect.  6.  (c)  Sect.  9. 


♦CHAPTER    IV.  [*100] 

OF   THE    DESCENT    OF   AN   ESTATE   IN   FEE    SIMPLE.1 

We  shall  now  proceed  to  consider  the  rules  of  the  descent  of  an  estate 
in  fee  simple,  as  altered  by  the  act  for  the  amendment  of  the  law  of  in- 
heritance.^) This  act  does  not  extend  to  any  descent  on  the  decease  of 
any  person  who  may  have  died  before  the  first  of  January,  1834.(5) 
For  the  rules  of  descent  prior  to  that  date,  the  reader  is  referred  to  the 
Commentaries  of  Blackstone,(c)  and  to  Watkins's  Essay  on  the  Law  of 
Descents. 

1.  The  first  rule  of  descent  now  is  that  inheritances  shall  lineally 
descend,  in  the  first  place,  to  the  issue  of  the  last  purchaser  in  infinitum. 
The word  purchase  has  in  law  a  meaning  more  extended  than  its  ordi- 
nary sense:  it  is  possession  to  which  a  man  cometh  not  by  title  of  de- 
scent :{d)  a  devisee  under  a  will  is  accordingly  a  purchaser  in  law.  And, 
by  the  act,  the  purchaser  from  whom  descent  is  to  be  traced  is  defined 
to  be  the  last  person  who  had  a  right  to  the  land,  and  who  cannot  be 
proved  to  have  acquired  the  land  by  descent,  or  by  certain  means(e) 
which  render  the  land  part  of,  or  descendible  in  the  same  manner  as, 
other  land  acquired  by  descent.  This  rule  is  an  alteration  of  the  old 
law,  which  was,  that  descent  should  be  traced  from  the  person  who  last 

(a)  Stat.  3  &  4  Will.  IV.  c.  106,  amended  by  stat.  22  &  23  Vict.  c.  35,  ss.  19,  20. 

(b)  Sect.  11.  (c)  2  Black.  Com.  c.  14. 

(d)  Litt.  s.  12.  (e)  Escheat,  Partition,  and  Inclosure,  s.  1. 

1  The  descent  of  real  estate  on  this  side  nearly  impossible   to  collect  the  statutes 

of  the  Atlantic  is  regulated  by  the  local  of  over    thirty  different  States,  and  give 

statutes  in  the  different  States,  which  it  briefly  their  substance    and   result,   with 

would  be  out  of  place  to  insert  in  a  work  entire  accuracy  as  to  all  of  them, — a  diffi- 

like    the    present.     A  collection  of  them  culty  most  freely  acknowledged  by  those 

may  be  found  in  3  Greenleaf  s  Cruise  on  who  have  attempted  it  most  successfully. 

Real  Property  166.    The  student,  however,  The  laws,  moreover,  "  on  this  as  on  many 

who  desires  to  inform  himself  accurately  other  subjects,  are   not  constant,  but   ex- 

as  to   the  statute  law  of  any  State,  upon  posed  to  the  restless  love  of  change  which 

this   or   almost    any   other    subject,   will  seems  to  be  inherent  in  American  policy, 

resort  to  those  laws  themselves,  as  what-  both   as   to    constitution   and    laws."      4 

ever  may  be   the  diligence  or  fidelity  of  Kent's  Commentaries  406,  n.  R. 

any  text  writer  upon  American  law,  it  is 


101  OF   CORPOREAL   HEREDITAMENTS. 

r*1011  ^ad  *^e  feu^  possession  or  *seisin,  as  it  was  called  ;  the  maxim 
being  seisina  facit  stipitem.(f)1  This  maxim,  a  relic  of  the 
troublesome  times  when  right  without  possession  was  worth  but  little, 
sometimes  gave  occasion  to  difficulties,  owing  to  the  uncertainty  of  the 
question,  whether  possession  had  or  had  not  been  taken  by  any  person 
entitled  as  heir ;  thus,  where  a  man  was  entering  into  a  house  by  the 
window,  and  when  half  out  and  half  in,  was  pulled  out  again  by  the 
heels,  it  was  made  a  question,  whether  or  no  this  entry  was  sufficient, 
and  it  was  adjudged  that  it  was.(^)  These  difficulties  cannot  arise  under 
the  new  act ;  for  now  the  heir  to  be  sought  for  is  not  the  heir  of  the 
person  last  possessed,  but  the  heir  of  the  last  person  entitled  who  did  not 
inherit,  whether  he  did  or  did  not  obtain  the  possession,  or  the  receipt  of 
the  rents  and  profits  of  the  land.  The  rule,  as  altered,  is  not  indeed 
altogether  free  from  objection;  for  it  will  be  observed  that,  not  content 
with  making  a  title  to  the  land  equivalent  to  possession,  the  act  has 
added  a  new  term  to  the  definition,  by  directing  descent  to  be  traced 
from  the  last  person  entitled  ivho  did  not  inherit.  So  that  if  a  person 
who  has  become  entitled  as  heir  to  another  should  die  intestate,  the  heir 
to  be  sought  for  is  not  the  heir  of  such  last  owner,  but  the  heir  of  the 
person  from  whom  such  last  owner  inherited.  This  provision,  though 
made  by  an  act  consequent  on  the  report  of  the  Real  Property  Commis- 
sioners, was  not  proposed  by  them.  The  Commissioners  merely  pro- 
posed that  lands  should  pass  to  the  heir  of  the  person  last  entitled,(h) 
instead,  as  before,  of  the  person  last  possessed  ;  thus  facilitating  the  dis- 
covery of  the  heir,  by  rendering  a  mere  title  to  the  lands  sufficient  to 
make  the  person  entitled  the  stock  of  descent,  without  his  obtaining  the 
feudal  possession,  as  before  required.  Under  the  old  law,  descent  was 
l"*1 021  *confined  within  the  limits  of  the  family  of  the  purchaser  ;  but 
now  no  person  who  can  be  shown  to  have  inherited  can  be  the 
stock  of  descent,  except  in  the  case  of  the  total  failure  of  the  heirs  of 
the  purchaser  ;{i)  in  every  other  case,  descent  must  be  traced  from  the 
last  purchaser.  The  author  is  bound  to  state  that  the  decision  of  the 
Courts  of  Exchequer  and  the  Exchequer  Chamber,  in  the  recent  case  of 

(/)  2  Black.  Com.  209  ;  Watk.  Descent,  c.  1,  s.  2. 

(ff)  Watk.  Descent  45  (4th  ed.  53). 

(h)  Thirteenth  proposal  as  to  Descents. 

(i)  Stat.  22  &  23  Vict.  c.  35,  ss.  19,  20. 

1  A  maxim  to  be  considered  virtually  have  had  is  embraced  in  the  Statutes  of 
abrogated  in  nearly  all  the  United  States,  Descent.  4  Kent's  Com.  388  ;  3  Green- 
and  every  interest  which  the  intestate  may     leaf's  Cruise  142.  R. 


OF   THE    DESCENT    OF   AN    ESTATE    IN    FEE   SIMPLE.  102 

Muo-gleton  v.  Barnett,(&)  is  opposed  to  this  view  of  the  construction  of 
the  statute.  The  reasons  which  have  induced  the  author  to  think  that 
decision  erroneous  will  be  found  in  Appendix  A. 

2.  The  second  rule  is,  that  the  male  issue  shall  be  admitted  before  the 
female.^)1 

3.  The  third  rule  is,  that  where  two  or  more  of  the  male  issue  are  in 
equal  degree  of  consanguinity  to  the  purchaser,  the  eldest  only  shall 
inherit;  but  the  females  shall  inherit  all  together.(ra)  The  last  two 
rules  are  the  same  now  as  before  the  recent  act ;  accordingly,  if  a  man 
has  two  sons,  William  and  John,  and  two  daughters,  Susannah  and 
Catherine,(rc)  William,  the  eldest  son,  is  the  heir  at  law,  in  exclusion  of 
his  younger  brother  John,  according  to  the  third  rule,  and  of  his  sisters, 
Susannah  and  Catherine,  according  to  rule  2,  although  such  sisters 
should  be  his  seniors  in  years.  If,  however,  William  should  die  without 
issue,  then  John  will  succeed,  by  the  second  rule,  in  exclusion  of  his 
sisters ;  but  if  John  also  should  die  without  issue,  the  two  sisters  will 
succeed  in  equal  shares  by  the  third  rule,  as  being  together  heir  to  their 
father. 

*Primogeniture,  or  the  right  of  the  eldest  among  the  males  to  r*i  no-i 
inherit,  was  a  matter  of  far  greater  consequence  in  ancient  times, 
before  alienation  by  will  was  permitted,  than  it  is  at  present.  Its  feudal 
origin  is  undisputed ;  but  in  this  country  it  appears  to  have  taken  deeper 
root  than  elsewhere ;  for  a  total  exclusion  of  the  younger  sons  appears 
to  be  peculiar  to  England :  in  other  countries,  some  portion  of  the  inher- 
itance, or  some  charge  upon  it,  is,  in  many  cases  at  least,  secured  by  law 
to  the  younger  sons.(o)  From  this  ancient  right  has  arisen  the  modern 
English  custom  of  settling  the  family  estates  on  the  eldest  son  ;2  but  the 
right  and  the  custom  are  quite  distinct :  the  right  may  be  prevented  by 
the  owner  making  his  will ;  and  a  conformity  to  the  custom  is  entirely 
at  his  option. 

(k)  1  H.  &  N.  282  ;  2  H.  &  N.  653.  (I)  2  Black.  Com.  212. 

(m)  2  Black.  Com.  214.  (n)  See  the  Table  of  Descents  annexed. 

(o)  Co.  Litt.  191  a,  n.  (1),  vi.  4. 


1  In  all  of  the  United  States,  except,  it     or  the   like,  paying  to   the   others   their 
would  seem,  in  Tennessee,  all  the  children,     respective  shares  of  its  value.  R. 

females  as  well  as  males,  inherit  equally        2  It  may,  however,  be.  noticed    that  in 
together,  subject  in  some  of  them  to  the     English   settlements,  provisos  for   raising 
right  of  the  eldest  to  the  family  mansion,     portions  for  younger  sons  are  almost  uni- 
versal. R. 


103  OP    CORPOREAL    HEREDITAMENTS. 

When  two  or  more  persons  together  form  an  heir,  they  are  called  in 
law  coparceners,  or,  more  shortly,  parceners.(p)  The  term  is  derived, 
according  to  Littleton,^)  from  the  circumstance  that  the  law  will  con- 
strain them  to  make  partition  ;  that  is,  any  one  may  oblige  all  the  others 
so  to  do.  Whatever  may  be  thought  of  this  derivation,  it  will  serve  to 
remind  the  reader  that  coparceners  are  the  only  kind  of  joint  owners  to 
whom  the  ancient  common  law  granted  the  power  of  severing  their  estates 
without  mutual  consent :  as  the  estate  in  coparcenary  was  cast  on  them 
by  the  act  of  the  law,  and  not  by  their  own  agreement,  it  was  thought 
right  that  the  perverseness  of  one  should  not  prevent  the  others  from 
obtaining  a  more  beneficial  method  of  enjoying  the  property.  This  com- 
pulsory partition  was  formerly  effected  by  a  writ  of  partition, (r)  a  pro- 
1  ceeding  now  abolished.(s)  The  modern  method  *is  by  a  judge 
L  J  of  the  Chancery  Division  of  the  High  Court  in  chambers,  or 
more  rarely  by  a  commission  issued  for  the  purpose  by  that  Court.(£) 
Partition,  however,  is  most  frequently  made  by  voluntary  agreement 
between  the  parties,  and  for  this  purpose  a  deed  has,  by  a  modern  act 
of  parliament,  been  rendered  essential  in  every  case.(w)1  The  inclosure 
commissioners  for  England  and  Wales  have  also  power  to  effect  par- 
titions, by  virtue  of  modern  enactments,  which  will  be  found  mentioned 

(p)  Bac.  Abr.  tit.  Coparceners.  (?)  Sect.  241  ;  2  Black.  Com.  189. 

(r)  Litt.  ss.  247,  248.  («)  Stat.  3  &  4  Will.  IV.  c.  27,  s.  36. 

(t)  Co.  Litt.  169  a,  n.  (2) ;  1  Fonb.  Eq.  18  ;  Canning  v.  Canning,  2  Drewry  434 ;  stat. 
36  &  37  Vict.  c.  66,  s.  34,  subsect.  (3). 

(u)  Stat.  8  &  9  Vict.  c.  106,  s.  3,  repealing  stat.  7  &  8  Vict.  c.  76,  s.  3,  to  the  same 
effect. 


1  Partition  by  the  breve  de  partitione  fa-  were  given  a  day  in  court  to  show  cause 

cienda  is  constantly  employed  in  the  United  against  the  decree.  Note  to  Agar  v.  Fairfax, 

States,  regulated  in  many  of  them  by  their  passim,  2  Leading  Cases  in  Eq.  639,  3d  Am. 

local  statutes,  while  partition  in  equity  is  Ed.     But  by  a  recent  English  statute  (13 

enforced  in  all  the  States  where  a  general  &    14  Victoria,  c.  60),  the   court  there   is 

chancery  jurisdiction  extends.    See  passim,  authorized  to  make  an  order  vesting  the 

note  to  2  Greenleaf's  Cruise  413.     An  im-  shares  of  infants  in  such  persons  and  for 

portant  difference  between  these  modes  of  such  estates  as  the  court  shall  direct.    For 

effecting  a  partition  is  that  the  approval  the  form  of  the  decree  under  this  act,  see 

by  the  court  of  the  return  of  the  sheriff  and  Brown  v.  Wright,  3  Eng.  Law  and  Eq.  Rep. 

inquest  to  the  breve  de  partitione  facienda  190.                                                               R- 

vests   of  itself  the  titles  to  the  different  In  Pennsylvania,  the  final  decree   in   a 

shares  or  purparts,  while  in  equity,  the  de-  partition    in    equity   has,    by  statute,  the 

cree  of  the  court  does  not  pass  the  title,  same  effect  as  to  vesting  title  in  severalty 

and    conveyances   between    the    different  as  a  final  judgment  in  an  action  of  par- 

parties  are  requisite  for  that  purpose ;  and  tition  by  writ,  and   no    conveyances   are 

consequently  when  any  of  these  were  in-  now   necessary,   except   in   special    cases, 

fants,  the  conveyances  were,  as  to  them,  Griffith  v.  Phillips,  3  Grant  381  ;  Purdon's 

respited    until   their  majority,  when   they  Digest,  title  "  Equity,"  p.  595. 


OF   THE    DESCENT    OF   AN    ESTATE   IN    FEE    SIMPLE.  104 

at  the  end  of  the  chapter  on  Joint  Tenants  and  Tenants  in  Common. 
When  partition  has  been  effected,  the  lands  allotted  are  said  to  be  held 
in  severalty ;  and  each  owner  is  said  to  have  the  entirety  of  her  own 
parcel.  After  partition,  the  several  parcels  of  land  descend  in  the  same 
manner  as  the  undivided  shares,  for  which  they  have  been  substituted;^) 
the  coparceners,  therefore,  do  not  by  partition  become  'purchasers,  but 
still  continue  to  be  entitled  by  descent.  The  term  coparceners  is  not 
applied  to  any  other  joint  owners,  but  only  to  those  who  have  become 
entitled  as  coheirs.(w) 

4.  The  fourth  rule  is,  that  all  the  lineal  descendants  in  infinitum  of 
any  person  deceased  shall  represent  their  ancestor;  that  is,  shall  stand 
in  the  same  place  as  the  person  himself  would  have  done  had  he  been 
living. (a;)  Thus,  in  the  case  above  mentioned,  on  the  death  of  William 
the  eldest  son,  leaving  a  son,  that  son  would  succeed  to  the  whole  by 
right  of  representation,  in  exclusion  of  his  uncle  John,  and  of  his  two 
aunts  Susannah  and  Catherine ;  or  had  William  left  a  son  and  daughter, 
such  daughter  would,  after  the  decease  *of  her  brother  without  r*-inc-i 
issue,  be,  in  like  manner,  the  heir  of  her  grandfather,  in  exclusion 
of  her  uncle  and  aunts. 

The  preceding  rules  of  descent  apply  as  well  to  the  descent  of  an 
estate  tail,  if  not  duly  barred,  as  to  that  of  an  estate  in  fee  simple.  The 
descent  of  an  estate  tail  is  always  traced  from  the  purchaser,  or  donee 
in  tail,  that  is,  from  the  person  to  whom  the  estate  tail  was  at  first 
given.  This  was  the  case  before  the  act,  as  well  as  now  ;(j/)  for,  the 
person  who  claims  an  entailed  estate  as  heir  claims  only  according  to 
the  express  terms  of  the  gift,  or,  as  it  is  said,  per  forniam  doni.  The 
gift  is  made  to  the  donee,  or  purchaser,  and  the  heirs  of  his  body  ;  all 
persons,  therefore,  who  can  become  entitled  to  the  estate  by  descent, 
must  answer  the  description  of  heirs  of  the  purchaser's  body ;  in  other 
words,  must  be  his  lineal  heirs.  The  second  and  third  rules  also  equally 
apply  to  estates  tail,  unless  the  restriction  of  the  descent  to  heirs  male 
or  female  should  render  unnecessary  the  second  and  either  clause  of  the 
third  rule.  The  fourth  rule  completes  the  canon,  so  far  as  estates  tail 
are  concerned ;  for,  when  the  issue  of  the  donee  are  exhausted,  such  an 
estate  must  necessarily  determine.     But  the  descent  of  an  estate  in  fee 

(v)  2  Prest.  Abst.  72  ;  Doe  d.  Crosthwaite  v.  Dixon,  5  Adol.  &  Ellis  834  (E.  C.  L.  R. 
vol.  31). 

(iv)  Litt.  s.  254.  (x)  2  Black.  Com.  216. 

\y)  Doe  d.  Gregory  v.  Whichelo,  8  T.  Rep.  211. 


105  OF    CORPOREAL    HEREDITAMENTS. 

simple  may  extend  to  many  other  persons,  and  accordingly  requires  for 
its  guidance  additional  rules,  with  which  we  now  proceed. 

5.  The  fifth  rule  is,  that  on  failure  of  lineal  descendants,  or  issue  of 
the  purchaser,  the  inheritance  shall  descend  to  his  nearest  lineal  ances- 
tor.1 This  rule  is  materially  different  from  the  rule  which  prevailed 
before  the  passing  of  the  act.  The  former  rule  was,  that,  on  failure  of 
lineal  descendants  or  issue  of  the  person  last  seised  (or  feudally  pos- 
r*iOfi1  sessec0?  tne  inheritance  should  *descend  to  his  collateral  rela- 
tions, being  of  the  blood  of  the  first  purchaser,  subject  to  the 
three  preceding  rules. (z)  The  old  law  never  allowed  lineal  relations  in 
the  ascending  line  (that  is,  parents  or  ancestors)  to  succeed  as  heirs. 
But,  by  the  new  act,  descent  is  to  be  traced  through  the  ancestor,  who 
is  to  be  heir  in  preference  to  any  person  who  would  have  been  entitled 
to  inherit,  either  by  tracing  his  descent  through  such  lineal  ancestor,  or 
in  consequence  of  there  being  no  descendant  of  such  lineal  ancestor. 
The  exclusion  of  parents  and  other  lineal  ancestors  from  inheriting 
under  the  old  law  was  a  hardship  of  which  it  is  not  easy  to  see  the  pro- 
priety ;  nor  is  the  explanation  usually  given  of  the  origin  perhaps  quite 
satisfactory.  Bracton,  who  is  followed  by  Lord  Coke,  compares  the 
descent  of  an  inheritance  to  that  of  a  falling  body,  which  never  goes 
upwards  in  its  course. (a)2     The  modern  explanation  derives  the  origin 

(2)  2  Black.  Com.  220.  (a)  Bract,  lib.  2,  c.  29;  Co.  Litt.  11  a. 

1  This  rule,  which  abrogates  the  old  ancesmay  lineally  descend,  but  not  ascend, 
canon,  that  "  the  inheritance  lineally  de-  barely  cites  the  passages  in  Bracton  to 
scends,  but  never  lineally  ascends,"  has  a  prove  that  lineal  ascent,  in  the  right  line, 
place  in  the  statutes  of  all  the  States,  is  prohibited,  and  not  in  the  collateral, 
though  with  a  difference  in  many  of  them  He  also  refers  to  RatclifFe's  case  (3  Co. 
as  to  the  parents  taking  jointly,  or  one  in  40),  where  some  reasons  are  assigned  for 
preference  to  the  other.                            R.  excluding  the  lineal  ascent,  and  the  law 

2  Such  was  Blackstone's  charge  against  of  gravity  is  not  one  of  them.  The  words 
Bracton  and  Coke,  but  Chancellor  Kent  of  Glanville  (lib.  7,  c.  1)  are  to  the  same 
has  shown  "  the  reflection  to  be  utterly  effect :  Haereditas  naturaliter  descendit, 
unmerited  and  groundless.  Bracton,  af-  nunquam  naturaliter  ascendit.  This  is 
ter  speaking  of  the  descent  of  the  fee  to  clearly  the  course  and  dictate  of  nature. 
the  lineal  and  collateral  heirs,  adds,  De-  It  is  alluded  to  in  one  of  the  Epistles  of 
scendit  itaque  jus  quasi  ponderosum  quid  St.  Paul  (2  Cor.  xii.  14);  and  it  was  fre- 
cadens  deorsum  recta  linea  vel  transver-  quently  and  pathetically  inculcated  in  the 
Bali,  el  nunquam  reascendit  ea  via  qua  classical  as  well  as  in  the  juridical  com- 
descendit.  A  latere  tanieu  ascendit  alicui  positions  of  the  ancients.  (Taylor's  Ele- 
propter  defectum  hseredum  inferius  pro-  ments  of  the  Civil  Law  540-542.)  The 
venientium.  (Bracton,  lib.  2,  c.  29,  sec.  ascent  to  parents  is  up  stream,  and  against 
1.)  Lord  Coke  (Co.  Litt.  11  a),  after  quot-  the  natural  order  of  succession.  Bracton 
ing  the  maxim  in  Littleton,  that  inherit-  admits    the    ascent    in    collateral    cases, 


OF   THE    DESCENT    OF    AN    ESTATE    IN   FEE    SIMPLE.  106 

of  collateral  heirships,  in  exclusion  of  lineal  ancestors,  from  gifts  of 
estates  (at  the  time  when  inheritances  were  descendible  only  to  issue  or 
lineal  heirs)  made,  by  the  terms  of  the  gift,  to  be  descendible  to  the  heirs 
of  the  donee,  in  the  same  manner  as  an  ancient  inheritance  would  have 
descended.  This  was  called  a  gift  of  a  feudum  novum,  or  new  inherit- 
ance, to  hold  ut  feudum  antiquum,  as  an  ancient  one.  Now,  an  ancient 
inheritance, — one  derived  in  a  course  of  descent  from  some  remote  lineal 
ancestor, — would  of  course  be  descendible  to  all  the  issue  or  lineal  heirs 
of  such  ancestor,  including,  after  the  lapse  of  many  years,  numerous 
families,  all  collaterally  related  to  one  another  :  an  estate  newly  granted, 
to  be  descendible  ut  feudum  antiquum,  would  therefore  be  capable  of 
descending  to  the  collateral  relations  of  the  grantee,  in  the  same  manner 
as  a  really  ancient  inheritance,  descended  to  him,  would  have  done. 
But  an  ancient  inheritance  would  never  go  to  the  father  *of  any  r^^Q^-j 
owner,  because  it  must  have  come  from  his  father  to  him,  and 
the  father  must  have  died  before  the  son  could  inherit  :  in  grants  of 
inheritances  to  be  descendible  as  ancient  ones,  it  followed,  therefore, 
that  the  father  or  any  lineal  ancestor  could  never  inherit.(&)  So  far, 
therefore,  the  explanation  holds;  but  it  is  not  consistent  with  every 
circumstance ;  for  an  elder  brother  has  always  been  allowed  to  succeed 
as  heir  to  his  younger  brother,  contrary  to  this  theory  of  an  ancient 
lineal  inheritance,  which  would  have  previously  passed  by  every  elder 
brother,  as  well  as  the  father.  The  explanation  of  the  origin  of  a  rule, 
though  ever  so  clear,  is,  however,  a  different  thing  from  a  valid  reason 
for  its  continuance ;  and,  at  length,  the  propriety  of  placing  the  prop- 
erty of  a  family  undef  the  care  of  its  head  is  now  perceived  and  acted 
on ;  and  the  father  is  heir  to  each  of  his  children  who  may  die  intes- 
tate, and  without  issue,  as  is  more  clearly  pointed  out  by  the  next  rule. 

6.  The  sixth  rule  is,  that  the  father  and  all  the  male  paternal  ances- 
tors of  the  purchaser,  and  their  descendants,  shall  be  admitted  before 
any  of  the  female  paternal  ancestors  or  their  heirs ;  all  the  female  pater- 
nal ancestors  and  their  heirs,  before  the  mother  or  any  of  the  maternal 
ancestors,  or  her  or  their  descendants  ;  and  the  mother  and  all  the  male 

(b)  2  Black.  Com.  212,  221,  222  ;  Wright's  Tenures  180.    See  also  Co.  Litt.  11,  a,  n.  (1). 

which  shows  that  he  did  not  consider  de-  illustration  ;    and  it  was  a  beautiful  and 

scent    'regulated'    by  any    dark    conceit,  impressive  allusion,  worthy  of  the  polished 

The  'laws  of  gravitation'  were  unknown  taste  of  Bracton,  and"  the  grave  learning 

when  Bracton  wrote.     He  merely  alluded  of  Coke."     4  Kent's  Com.  395,  n.  R. 

to  the  descent  of  falling  bodies  by  way  of 


107  OF    CORPOREAL    HEREDITAMENTS. 

maternal  ancestors,  and  her  and  their  descendants,  before  any  of  the  fe- 
male maternal  ancestors,  or  their  heirs. (c)  This  rule  is  a  development  of 
the  ancient  canon,  which  requires  that,  in  collateral  inheritances,  the  male 
stocks  should  always  be  preferred  to  the  female ;  and  it  is  analogous  to 
the  second  rule  above  given,  which  directs  that  in  lineal  inheritances  the 
male  issue  shall  be  admitted  before  the  female.  This  strict  and  careful 
r*i  0^1    Preference  °f  tne  ™ale  *to  the  female  line  was  in  full  accord- 

ance  with  the  spirit  of  the  feudal  system,  which,  being  essentially 
military  in  its  nature,  imposed  obligations  by  no  means  easy  for  a  female 
to  fulfill ;  and  those  who  were  unable  to  perform  the  services  could  not 
expect  to  enjoy  the  benefits.(fZ)  The  feudal  origin  of  our  laws  of  descent 
will  not,  however,  afford  a  complete  explanation  of  this  preference ;  for 
such  lands  as  continued  descendible  after  the  Saxon  custom  of  equal 
division,  and  not  according  to  the  Norman  and  feudal  law  of  primogeni- 
ture, were  equally  subject  to  the  preference  of  males  to  females,  and  de- 
scended in  the  first  place  exclusively  to  the  sons,  who  divided  the  inher- 
itance between  them,  leaving  nothing  at  all  to  their  sisters.  The  true 
reason  of  the  preference  appears  to  lie  in  the  degraded  position  in  society 
which,  in  ancient  times,  was  held  by  females  ;  a  position  arising  from 
their  deficiency  in  that  kind  of  might  which  then  too  frequently  made 
the  right.  The  rights  given  by  the  common  law  to  a  husband  over  his 
wife's  property  (rights  now  generally  controlled  by  proper  settlements 
previous  to  marriage)  show  the  state  of  dependence  to  which,  in  ancient 
times,  women  must  have  been  reduced. (e)  The  preference  of  males  to 
females  has  been  left  untouched  by  the  recent  act  for  the  amendment  of 
the  law  of  descents;  and  the  father  and  all  his  most  distant  relatives 
have  priority  over  the  mother  of  the  purchaser  :  she  cannot  succeed  as 
his  heir  until  all  the  paternal  ancestors  of  the  purchaser,  both  male  and 
female,  and  their  respective  families,  have  been  exhausted.  The  father, 
as  the  nearest  male  lineal  ancestor,  of  course  stands  first,  supposing  the 
issue  of  the  purchaser  to  have  failed.  If  the  father  should  be  dead,  his 
eldest  son,  being  the  brother  of  the  purchaser,  will  succeed  as  heir  in  the 
place  of  his  father,  according  to  the  fourth  rule ;  unless  he  be  of  the  half 
r*1091    Dl°°d  to  the  ^purchaser,  which  case  is  provided  for  by  the  next 

rule,  which  is  : — 

7.  That  a  kinsman  of  the  half  blood  shall  be  capable  of  being  heir ; 
and  that  such  kinsman  shall  inherit  next  after  a  kinsman  in  the  same 

(c)  Stat.  3  &  4  Will.  IV.  c.  106,  s.  7,  combined  with  the  definition  of  "  descendants," 
sect.  1. 

(tf)  2  Black.  Com.  214.  (e)  See  post,  the  chapter  on  Husband  and  Wife. 


OF    THE    DESCENT    OF    AN    ESTATE    IN    FEE    SIMPLE.  109 

decree  of  the  whole  blood,  and  after  the  issue  of  such  kinsman,  when  the 
common  ancestor  is  a  male,(/)  and  next  after  the  common  ancestor,  when 
such  ancestor  is  a  female.  This  introduction  of  the  half  blood  is  also  a 
new  regulation  ;  and,  like  the  introduction  of  the  father  and  other  lineal 
ancestors,  it  is  certainly  an  improvement  on  the  old  law,  which  had  no 
other  reason  in  its  favor  than  the  feudal  maxims,  or  rather  fictions,  on 
which  it  was  founded.^)  By  the  old  law,  a  relative  of  the  purchaser  of 
the  half  blood,  that  is,  a  relative  connected  by  one  only,  and  not  by  both 
of  the  parents,  or  other  ancestors,  could  not  possibly  be  heir  ;  a  half 
brother,  for  instance,  could  never  enjoy  that  right  which  a  cousin  of  the 
whole  blood,  though  ever  so  distant,  might  claim  in  his  proper  turn.1 
The  exclusion  of  the  half  blood  was  accounted  for  in  a  manner  similar  to 
that  by  which  the  exclusion  of  all  lineal  ancestors  was  explained  ;2  but  a 
return  to  practical  justice  may  well  compensate  a  breach  in  a  beautiful 
theory.  Relatives  of  the  half  blood  now  take  their  proper  and  natural 
place  in  the  order  of  descent.  The  position  of  the  half  blood  next  after 
the  common  ancestor,  when  such  ancestor  is  a  female,  is  rather  a  result 
of  the  sixth  rule,  than  an  additional  independent  regulation,  as  will 
appear  hereafter. 

8.  The  eighth  rule  is,  that,  in  the  admission  of  female  paternal  ances- 
tors, the  mother  of  the  more  remote  male  paternal  ancestor,  and  her  heirs, 
shall  be  preferred  to  the  mother  of  a  less  remote  male  paternal  ancestor,  and 
*her  heirs:  and,  in  the  admission  of  female  maternal  ancestors,  r^-i-in-i 
the  mother  of  the  more  remote  male  maternal  ancestor,  and  her  L 
heirs,  shall  be  preferred  to  the  mother  of  a  less  remote  male  maternal 
ancestor,  and  her  heirs. (h)  The  eighth  rule  is  a  settlement  of  a  point 
in  distant  heirships  which  very  seldom  occurs,  but  which  has  been  the 
subject  of  a  vast  deal  of  learned  controversy.  The  opinion  of  Black- 
stone^')  and  Watkins(j)  is  now  declared  to  be  the  law. 

(/)  Stat.  3  &  4  Will.  IV.  c.  106,  s.  9.  (g)  2  Black.  Com.  228. 

\h)  Stat.  3  &  4  Will.  IV.  c.  106,  s.  8.     See  Greaves  v.  Greenwood,  24  W.  R.  926,  45 
L.  J.  Ex.  Div.  795,  affirmed  by  Court  of  Appeal,  W.  N.  1877,  p.  12. 
(<)  2  Black.  Com.  238. 
(/)  Watkins  on  Descent  130  (146  et  seq.  4th  ed.). 

1  In  many  of  the  United  States,  the  half         2  Blackstone  accounted  it  not  so  much  a 

blood  inherit  equally  with  the  whole  blood,  rule  of  descent  as  a  rule  of  evidence,  viz. : 

In  some  of  them  they  are  postponed  to  the  that  the  person  who  is  of  the  whole  blood 

whole  blood.     In  none  of  them  is  it  be-  affords  the  best  presumptive  proof  that  he 

lieved  that  the  half  blood  are  entirely  ex-  is  of  the  blood  of  the  first  ancestor.     2  Bl. 

eluded.  M.  Com.  228.  R. 


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OF    THE    DESCENT    OF   AN    ESTATE    IN    FEE    SIMPLE.  110 

9.  A  further  rule  of  descent  has  now  been  introduced  by  a  recent 
statute, (k)  which  enacts  that,  where  there  shall  be  a  total  failure  of  heirs 
of  the  purchaser,  or  where  any  land  shall  be  descendible  as  if  an  ances- 
tor had  been  the  purchaser  thereof,  and  there  shall  be  a  total  failure  of 
the  heirs  of  such  ancestor,  then  and  in  every  such  case  the  land  shall 
descend,  and  the  descent  shall  thenceforth  be  traced,  from  the  person 
last  entitled  to  the  land,  as  if  he  had  been  the  purchaser  thereof.1  This 
enactment  provides  for  such  a  case  as  the  following.  A  purchaser  of 
lands  may  die  intestate,  leaving  an  only  son  and  no  other  relations.  On 
the  death  of  the  son  intestate  there  will  be  a  total  failure  of  the  heirs  of 
the  purchaser  ;  and  previously  to  this  enactment  the  land  would  have 
escheated  to  the  lord  of  the  fee,  as  explained  in  the  next  chapter.  But 
now,  although  there  be  no  relations  of  the  son  on  his  father's  side,  yet 
he  may  have  relations  on  the  part  of  his  mother,  or  his  mother  may  her- 
self be  living :  and  these  persons,  who  were  before  totally  excluded,  are 
now  admitted  in  the  order  mentioned  in  the  sixth  rule. 

The  rules  of  descent  above  given  will  be  better  *apprehended  p^lll 
by  a  reference  to  the  accompanying  table,  taken,  with  a  little 
modification,  from  Mr.  Watkins's  Essay  on  the  Law  of  Descents.  In 
this  table,  Benjamin  Brown  is  the  purchaser,  from  whom  the  descent  is 
to  be  traced.  On  his  death  intestate,  the  lands  will  accordingly  descend 
first  to  his  eldest  son  by  Ann  Lee,  William  Brown  ;  and  from  him 
(2dly)  to  Ms  eldest  son  by  Sarah  Watts,  Isaac  Brown.  Isaac  dying 
without  issue,  we  must  now  seek  the  heir  of  the  purchaser,  and  not  the 
heir  of  Isaac.  William,  the  eldest  son  of  the  purchaser,  is  dead ;  but 
William  may  have  had  other  descendants,  besides  Isaac  his  eldest  son  ; 
and,  by  the  fourth  rule,  all  the  lineal  descendants  in  infinitum  of  every 
person  deceased  shall  represent  their  ancestor.  We  find  accordingly 
that  William  had  a  daughter  Lucy  by  his  first  wife,  and  also  a  second 
son,  George,  by  Mary  Wood,  his  second  wife.  But  the  son  George, 
though  younger  than  his  half  sister  Lucy,  yet  being  a  male,  shall  be 
preferred  according  to  the  second  rule ;  and  he  is  therefore  (3dly)  the 
next  heir.  Had  Isaac  been  the  purchaser,  the  case  would  have  been 
different ;  for,  his  half  brother  George  would  then  have  been  postponed, 

(k)  Stat.  22  &  23  Vict.  c.  35,  ss.  19,  20. 

1  This  is  believed  to  have  long  been  the  surviving  wife  or  husband  for  such  estate 
American  rule,   and   in   Pennsylvania,  as  as  the  intestate  had  therein,  in  preference 
well  as  in  some  other  States,  in  default  of  to  the  right  of  the  State  by  escheat.    Pur- 
all  known  heirs  or  kindred  competent  to  don's  Dig.,  Intestates,  pi.  28.  M. 
take,  the  estate  of  an  intestate  goes  to  the 


HI  OF   CORPOREAL   HEREDITAMENTS. 

in  favor  of  his  sister  Lucy  of  the  whole  blood,  according  to  the  seventh 
rule.  But  now  Benjamin  is  the  purchaser,  and  both  Isaac  and  George 
are  equally  his  grandchildren.  George  dying  without  issue,  we  must 
again  seek  the  heir  of  his  grandfather  Benjamin,  who  now  is  undeniably 
(4thly)  Lucy,  she  being  the  remaining  descendant  of  his  eldest  son. 
Lucy  dying  likewise  without  issue,  her  father's  issue  become  extinct ; 
and  we  must  still  inquire  for  the  heir  of  Benjamin  Brown,  the  purchaser, 
whom  we  now  find  to  be  (5thly)  John  Brown,  his  only  son  by  his  second 
wife.  The  land  then  descends  from  John  to  (6thly)  his  eldest  son 
Edmund,  and  from  Edmund  (7thly)  to  his  only  son  James.  James 
dying  without  issue,  we  must  once  more  seek  the  heir  of  the  purchaser, 
l  whom  we  find  *among  the  yet  living  issue  of  John.  John  leaving 
*-  *^  a  daughter  by  his  first  wife,  and  a  son  and  a  daughter  by  his 
second  wife,  the  lands  descend  (8thly)  to  Henry  his  son  by  Frances 
Wilson,  as  being  of  the  male  sex  ;  but  he  dying  without  issue,  we  again 
seek  the  heir  of  Benjamin,  and  find  that  John  left  two  daughters,  but  by 
different  wives  ;  these  daughters,  being  in  the  same  degree  and  both 
equally  the  children  of  their  common  father,  whom  they  represent,  shall 
succeed  (9thly)  in  equal  shares.  One  of  these  daughters  dying  without 
issue  in  the  lifetime  of  the  other,  the  other  shall  then  succeed  to  the 
whole  as  the  only  issue  of  her  father.  But  the  surviving  sister  dying 
also  without  issue,  we  still  pursue  our  old  inquiry,  and  seek  again  for 
the  heir  of  Benjamin  Brown  the  purchaser. 

The  issue  of  the  sons  of  the  purchaser  is  now  extinct ;  and,  as  he  left 
two  daughters,  Susannah  and  Catherine,  by  different  wives,  we  shall  find, 
by  the  second  and  third  rules,  that  they  next  inherit  (lOthly)  in  equal 
shares  as  heirs  to  him.  Catherine  Brown,  one  of  the  daughters,  now 
marries  Charles  Smith,  and  dies,  in  the  lifetime  of  her  sister  Susannah, 
leaving  one  son,  John.  The  half-share  of  Catherine  must  then  descend 
to  the  next  heir  of  her  father  Benjamin,  the  purchaser.  The  next  heirs 
of  Benjamin  Brown,  after  the  decease  of  Catherine,  are  evidently 
Susannah  Brown  and  John  Smith,  the  son  of  Catherine.  And  in  the 
first  edition  of  the  present  work  it  was  stated  that  the  half  share  of 
Catherine  would,  on  her  decease,  descend  to  them.  This  opinion  has 
been  very  generally  entertained. (I)  On  further  research,  however,  the 
author  inclined  to  the  opinion  that  the  share  of  Catherine  would,  on  her 
decease,  descend  entirely  to  her  son  (llthly)  by  right  of  representation  ; 

(J)  23  Law  Mag.  279;  1  Hayes's  Conv.313  ;  1  Jarman  &  Bythewood's  Conveyancing, 
by  Sweet,  139. 


OF  THE  DESCENT  OF  AN  ESTATE  IN  FEE  SIMPLE.       113 

and  that,  as  respects  his  mother's  *share,  he,  and  he  only,  is  the    p-Qg-i 
right  heir  of  the  purchaser.     The  reasoning  which  led  the  author 
to  this  conclusion  will  be  found  in  the  Appendix. (m)     This  point  is  now 
established  by  judicial  decision. (n) 

If  Susannah  Brown  and  John  Smith  should  die  without  issue,  the 
descendants  of  the  purchaser  will  then  have  become  extinct ;  and  Joseph 
Brown,  the  father  of  the  purchaser,  will  then  (12thly),  if  living,  be  his 
heir  by  the  fifth  and  sixth  rules.  Bridget,  the  sister  of  the  purchaser, 
then  succeeds  (13thly)  as  representing  her  father,  in  preference  to  her 
half  brother  Timothy,  who  is  only  of  the  half  blood  to  the  purchaser,  and 
is  accordingly  postponed  to  his  sister  by  the  seventh  rule.  But  next  to 
Bridget  is  Timothy  (14thly)  by  the  same  rule,  Bridget  being  supposed 
to  leave  no  issue. 

On  the  decease  of  Timothy  without  issue,  all  the  descendants  of  the 
father  will  have  failed,  and  the  inheritance  will  next  pass  to  Philip  Brown 
(15thly),  the  paternal  grandfather  of  the  purchaser.  But  the  grand- 
father being  dead,  we  must  next  exhaust  his  issue,  who  stand  in  his  place, 
and  we  find  that  he  had  another  son,  Thomas  (16thly),  who  accordingly 
is  the  next  heir;  and,  on  his  decease  without  issue,  Stephen  Brown 
(17thly),  though  of  the  half  blood  to  the  purchaser,  will  inherit,  by  the 
seventh  rule,  next  after  Thomas,  a  kinsman  in  the  same  degree  of  the 
whole  blood.  Stephen  Brown  dying  without  issue,  the  descendants  of 
the  grandfather  are  exhausted;  and  we  must  accordingly  still  keep, 
according  to  the  sixth  rule,  in  the  male  paternal  line,  and  seek  the 
paternal  great-grandfather  of  the  purchaser,  who  is  (18thly)  Robert 
Brown ;  and  who  is  represented,  on  his  decease,  by  (19thly)  Daniel 
*Brown,  his  son.  After  Daniel  and  his  issue  follow,  by  the  same  <-*-.-.<-> 
rule,  Edward  (20thly)  and  his  issue  (21stly),  Abraham.  L         J 

All  the  male  paternal  ancestors  of  the  purchaser,  and  their  descend- 
ants, are  now  supposed  to  have  failed ;  and  by  the  sixth  rule,  the  female 
paternal  ancestors  and  their  heirs  are  next  admitted.  By  the  eighth 
rule,  in  the  admission  of  the  female  paternal  ancestors,  the  mother  of  the 
more  remote  male  paternal  ancestor,  and  her  heirs,  shall  be  preferred  to 
the  mother  of  a  less  remote  male  paternal  ancestor  and  her  heirs.  Bar- 
bara Finch   (22dly),  and  her  heirs,  have   therefore  priority  both  over 

(m)  See  Appendix  (B). 

(n)  Cooper  v.  France,  V.-C.  E.,  14  Jur.  214  ;  19  Law  Journ.  (N.  S.)  Chancery,  313  ; 
Lewiu  v.  Lewin,  C.  P.  21  Nov.  1874. 


114  OF   CORPOREAL    HEREDITAMENTS. 

Margaret  Pain  and  her  heirs  and  Esther  Pitt  and  her  heirs ;  Barbara 
Finch  being  the  mother  of  a  more  remote  male  paternal  ancestor  than 
either  Margaret  Pain  or  Esther  Pitt.  Barbara  Finch  being  dead,  her 
heirs  succeed  her ;  she  therefore  must  now  be  regarded  as  the  stock  of 
descent,  and  her  heirs  will  be  the  right  heirs  of  Benjamin  Brown  the 
purchaser.  In  seeking  for  her  heirs  inquiry  must  first  be  made  for  her 
issue ;  now  her  issue  by  Edward  Brown  has  already  been  exhausted  in 
seeking  for  his  descendants  ;  but  she  might  have  had  issue  by  another 
husband ;  and  such  issue  (23dly)  will  accordingly  next  succeed.  These 
issue  are  evidently  of  the  half  blood  to  the  purchaser.  But  they  are  the 
right  heirs  of  Barbara  Finch ;  and  they  are  accordingly  entitled  to  suc- 
ceed next  after  her,  without  the  aid  they  might  derive  from  the  position 
expressly  assigned  to  them  by  the  seventh  rule.  The  common  ancestor 
of  the  purchaser  and  of  the  issue  is  Barbara  Finch,  a  female ;  and,  by 
the  united  operation  of  the  other  rules,  these  issue  of  the  half  blood  suc- 
ceed next  after  the  common  ancestor.  The  latter  part  of  the  seventh 
rule  is,  therefore,  explanatory  only,  and  not  absolutely  necessary. (o)  In 
m  n  default  of  issue  of  Barbara  *Finch,  the  lands  will  descend  to  her 
*-  *  father  Isaac  Finch  (24thly),  and  then  to  his  issue  (25thly),  as 
representing  him.  If  neither  Barbara  Finch  nor  any  of  her  heirs  can 
be  found,  Margaret  Pain  (26thly),  or  her  heirs,  will  be  next  entitled, 
Margaret  Pain  being  the  mother  of  a  more  remote  male  paternal  ancestor 
than  Esther  Pitt ;  but  next  to  Margaret  Pain  and  her  heirs  will  be  Esther 
Pitt  (27thly),  or  her  heirs,  thus  closing  the  list  of  female  paternal 
ancestors. 

Next  to  the  female  paternal  ancestors  and  their  heirs  comes  the  mother 
of  the  purchaser,  Elizabeth  Webb  (28thly),  (supposing  her  to  be  alive), 
with  respect  to  whom  the  same  process  is  to  be  pursued  as  has  before 
been  gone  over  with  respect  to  Joseph  Brown,  the  purchaser's  father. 
On  her  death,  her  issue  by  John  Jones  (29thly)  will  accordingly  next 
succeed,  as  representing  her,  by  the  fourth  rule,  agreeably  to  the  declara- 
tion as  to  the  place  of  the  half  blood  contained  in  the  seventh  rule.  Such 
issue  becoming  extinct,  the  nearest  male  maternal  ancestor  is  the  pur- 
chaser's maternal  grandfather,  William  Webb  (30thly),  whose  issue 
(31stly)  will  be  entitled  to  succeed  him.  Such  issue  failing,  the  whole 
line  of  male  maternal  ancestors  and  their  descendants  must  be  exhausted, 
by  the  sixth  rule,  before  any  of  the  female  maternal  ancestors,  or  their 
heirs,  can  find  admission  ;   and  when  the  female  maternal  ancestors  are 

(o)  See  Jarman  &  Bythewood's  Conveyancing,  by  Sweet,  vol.  i.  146,  note  (a). 


OF    THE    DESCENT    OF    AN    ESTATE   IN    FEE    SIMPLE.  115 

resorted  to   the  mother  of  the  more  remote  male  maternal  ancestor,  and 
her  heirs,  is  to  be  preferred,  by  the  eighth  rule,  to  the  mother  of  the  less 
remote  male  maternal  ancestor,  and  her  heirs.     The  course  to  be  taken 
is,  accordingly,  precisely  the  same  as  in  pursuing  the  descent  through 
the  paternal  ancestors  of  the  purchaser.     In  the  present  table,  therefore, 
Harriet  Tibbs  (32dly),  the  maternal  grandmother  of  the  purchaser,  is  the 
person  next  entitled,  no  claimants  appearing  whose  title  is  preferable; 
and,  should  she  be  dead,  her  *heirs  will  be  entitled  next  after   j-ni6] 
her      On  the  failure  of  the  heirs  of  the  purchaser,  the  person 
last  entitled  is,  as  we  have  seen,(p)  to  be  substituted  in  his  place,  and 
the  same  course  of  investigation  is  again  to  be  pursued  with  respect  to 
the  person  last  entitled  as  has  already  been  pointed  out  with  respect  to  the 

last  purchaser. 

It  should  be  carefully  borne  in  mind  that  the  above-mentioned  rules 
of  descent  apply  exclusively  to  estates  in  land,  and  to  that  kind  of  prop- 
erty which  is  denominated  real,  and  have  no  application  to  money  or 
other  personal  estate,  which  is  distributed  on  intestacy  in  a  manner 
which  the  reader  will  find  explained  in  the  author's  treatise  on  the  law 
of  personal  property. (q)1 

A  new  exception  to  the  law  of  descent  has  been  made  by  the  Land 
Transfer  Act,  1875,(r)  which  enacts(s)  that  upon  the  death  of  a  bare 
trustee  intestate  as  to  any  corporeal  or  incorporeal  hereditament  of 
which  such  trustee  was  seised  in  fee  simple,  such  hereditament  shall 
vest,  like  a  chattel  real,  in  the  legal  personal  representative  from  time  to 
time' of  such  trustee;  but  this  enactment  does  not  apply  to  lands  regis- 
tered under  the  Land  Transfer  Act.  A  bare  trustee  may,  perhaps,  be 
defined  as  a  person  who  has  no  beneficial  interest  in  the  property  of 
which  he  is  seised,  nor  any  active  duty  to  perform  with  respect  of  it.{t) 

(p)  Ante,  p.  110.  ,„„„„„,_ 

\q)  Page  256,  1st  ed.  ;  275,  2d  ed. ;  283,  3d  ed. ;  299,  4th  ed. ;  332,  5th  ed. ;  339,  6th 

ed  •  354,  7th  ed. ;  367,  8th  ed. ;  396,  9th  ed. 

(r)  Stat   38  &  39  Vict.  c.  87,  which  commenced  1st  January,  1876,  repealing  stat.  3< 

&  38  Vict.  c.  78,  s.  5,  passed  7th  August,  1874,  which  was  to  the  same  effect,  omitting 

the  word  "  intestate." 

(s)  Sect.  48.  - 

\t)  See  Christie  v.  Ovington,  L.  R.,  1  Ch.  D.  279,  and  post,  the  chapter  ou  Uses  and 

Trusts.  


1  See  ante,  p.  8,  n.  1. 


[*117]  CHAPTER   V. 

OF   THE    TENURE    OF   AN    ESTATE    IN    FEE    SIMPLE. 

The  most  familiar  instance  of  a  tenure  is  given  by  a  common  lease  of 
a  house  or  land  for  a  term  of  years;  in  this  case  the  person  letting  is 
still  called  the  landlord,  and  the  person  to  whom  the  premises  are  let  is 
the  tenant ;  the  terms  of  the  tenure  are  according  to  the  agreement  of 
the  parties,  the  rent  being  usually  the  chief  item,  and  the  rest  of  the 
terms  of  tenure  being  contained  in  the  covenants  of  the  lease;  but,  if  no 
rent  should  be  paid,  the  relation  of  the  landlord  and  tenant  would  still 
subsist,  though,  of  course,  not  with  the  same  advantage  to  the  landlord. 
This,  however,  is  not  a  freehold  tenure ;  the  lessee  has  only  a  chattel 
interest,  as  has  been  before  observed ;(«)  but  it  may  serve  to  explain 
tenures  of  a  freehold  kind,  which  are  not  so  familiar,  though  equally  im- 
portant. So,  when  a  lease  of  lands  is  made  to  a  man  for  his  life,  the 
lessee  becomes  tenant  to  the  lessor,(6)  although  no  rent  may  be  reserved  ; 
here  again  a  tenure  is  created  by  the  transaction,  during  the  life  of  the 
lessee,  and  the  terms  of  the  tenure  depend  on  the  agreement  of  the  parties. 
So,  if  a  gift  of  land  should  be  made  to  a  man  and  the  heirs  of  his  body, 
the  donee  in  tail,  as  he  is  called,  and  his  issue,  would  be  the  tenants  of 
the  donor  as  long  as  the  entail  lasted, (c)  and  a  freehold  tenure  would 
thus  be  created. 

But  if  a  gift  should  be  made  to  a  man  and  his  heirs,  or  for  an  estate 
r*-|iQ-i  in  fee  simple,  it  would  not  now  be  lawful  *for  the  parties  to 
create  a  tenure  between  themselves,  as  in  the  case  of  a  gift  for 
life,  or  in  tail.  For  by  the  statute  of  Quia  emptores.(d)  we  have  seen  that 
it  was  enacted,  that  from  henceforth  it  should  be  lawful  for  every  free  man 
to  sell,  at  his  own  pleasure,  his  lands  or  tenements,  or  part  thereof,  so 
nevertheless  that  the  feoffee,  or  purchaser,  should  hold  the  same  lands  or 
tenements  of  the  same  chief  lord  of  the  fee,  and  by  the  same  services  and 
customs  as  his  feoffor,  the  seller,  held  them  before.  The  giver  or  seller 
of  an  estate  in  fee  simple  is  then  himself  but  a  tenant,  writh  liberty  of 
putting  another  in  his  own  place.     He  may  have  under  him  a  tenant  for 

(a)  Ante,  p.  8.  (6)   Litt.  s.  132  ;  Gilb.  Tenures  90. 

(c)  Litt.  s.  10  ;   Kitchen  on  Courts  410  :  Watk.  Desc.  p.  4,  n.(m)  ;  pp.  11,  12  (4th  ed.). 

(d)  18  Edw.  1.  c.  1,  ante,  p.  G2. 


OF    THE    TENURE    OF    AN    ESTATE    IN    FEE    SIMPLE. 


118 


years,  or  a  tenant  for  life,  or  even  a  tenant  in  tail,  but  he  cannot  now, 
by  any  kind  of  conveyance,  place  under  himself  a  tenant  of  an  estate  in 
fee  simple.  The  statute  of  Quia  emptores  now  forbids  any  one  from 
making  himself  the  lord  of  such  an  estate ;  all  he  can  do  is  to  transfer  his 
own  tenancy  ;  and  the  purchaser  of  an  estate  in  fee  simple  must  hold  his 
estate  of  the  same  chief  lord  of  the  fee,  as  the  seller  held  before  him.  The 
introduction  of  this  doctrine  of  tenures  has  been  already  noticed,(e)  and  it 
still  prevails  throughout  the  kingdom  ;  for  it  is  a  fundamental  rule  that 
all  the  lands  within  this  realm  were  originally  derived  from  the  crown 
(either  by  express  grant  or  tacit  intendment  of  law),  and  therefore  the 
queen  is  sovereign  lady,  or  lady  paramount,  either  mediate  or  immediate, 
of  all  and  every  parcel  of  land  within  the  realm. (/)x 

(e)  Ante,  pp.  2,  3. 

(/)  Co.  Litt.  65  a,  93  a  ;   Year  Book,  M.  24  Edw.  III.,  65  b,  pi.  60. 


1  The  nature  of  the  tenure  in  the  Ameri- 
can colonies  has  already  been  adverted  to, 
supra,  p.  6,  note.  By  the  charter  of  Pennsyl- 
vania the  province  was  granted  by  Chas. 
II.  to  William  Penn  and  his  heirs,  "  as  ab- 
solute proprietary,"  to  be  holden  of  Chas. 
II.,  his  heirs  and  successors,  kings  of  Eng- 
land, as  of  his  castle  of  Windsor,  in  free 
and  common  socage,  by  fealty  only,  for  all 
services,  and  not  in  capite,  or  by  knights' 
service,  yielding  and  paying  therefor  two 
beaver  skins,  to  be  delivered  annually  at 
his  said  castle,  and  also  the  fifth  part  of  all 
gold  and  silver  ore  which  should  from  time 
to  time  happen  to  be  found  within  the 
limits  of  the  province,  clear  of  all  charges. 
The  charter  further  granted  to  Penn  and 
his  heirs  power  to  alien  parts  of  the  prov- 
ince in  fee  simple,  tail,  or  for  life  or  years, 
to  be  held  of  him  as  of  his  said  seignory  of 
Windsor,  by  such  services,  customs,  and 
rents,  as  he  or  they  should  think  fit,  and 
not  of  the  crown,  "  the  statute  of  quia 
emptores  terrarum  in  anywise  notwithstand- 
ing," and  enable  such  grantees,  with  the 
license  of  the  proprietaries,  to  erect  manors 
with  courts  baron,  and  to  make  grants  to 
be  held  of  such  manors.  The  divesting  act 
of  1779,  1  Sm.  Laws,  479,  substituted  the 
Commonwealth  for  the  Proprietaries,  and 
in  all  patents  of  land  from  the  Common- 
wealth the  above  reservation  of  ore  is  to 
this  day  inserted.     The  existence  of  fealty, 


escheat,  and  forfeiture  has  been  considered 
further  evidence  of  the  feudal  nature  of 
the  tenure,  as  also  the  early  statutes  re- 
specting the  transfer  of  real  estate.      R. 

In  Wallace  v.  Harmstead,  8  Wright  492, 
however,  the  Supreme  Court  of*  Pennsylva- 
nia said  that  the  title  to  lands  in  that  State 
is  allodial.  This  case  is  a  curious  illustra- 
tion of  the  way  in  which  questions,  appa- 
rently of  merely  speculative  interest,  some- 
times assume  a  practical  value  in  the  de- 
termination of  rights  under  the  law.  The 
grantor  of  land,  with  a  reservation  of 
ground-rent,  fraudulently  made  an  inter- 
lineation in  the  deed,  after  execution, 
whereby  the  time  within  which  the  ground- 
rent  might  be  extinguished  was  limited  to 
ten  years.  The  grantee  having  refused  to 
pay  the  ground-rent,  and  suit  being 
brought  on  the  deed,  it  was  held  that  the 
deed  was  avoided  as  to  the  rights  of  the 
grantor,  and  the  land  passed  discharged 
of  the  covenants  to  pay  rent.  Arrison  v. 
Harmstead,  2  Barr  191  ;  Wallace  v.  Harm- 
stead,  3  Harris  462.  The  grantor  (or  his 
assignee)  then  executed  a  distress,  and  on 
replevin,  avowed  for  rent  in  arrear,  as  re- 
served upon  the  deed.  The  argument  of 
very  learned  and  acute  counsel  was  that 
ground-rent  reserved  by  a  deed  is  an  estate 
which  vests  in  the  grantor  the  instant  that 
the  fee  in  the  land  vests  in  the  grantee  ; 
that  that  estate  is  a  rent  service  (Ingersoll 


118  OF    CORPOREAL    HEREDITAMENTS. 

The  rent,  services,  and  other  incidents  of  the  tenure  of  estates  in  fee 
simple  were,  in  ancient  times,  matters  of  much  variety,  depending  as  they 
did  on  the  mutual  agreements  which,  previously  to  the  statute  of  Quia 
qi  *emptores,  the  various  lords  and  tenants  made  with  each  other; 
*-  ■*  though  still  they  had  their  general  laws,  governing  such  cases  as 
were  not  expressly  provided  for.(</)  The  lord  was  usually  a  baron,  or 
other  person  of  power  and  consequence,  to  whom  had  been  granted  an 
estate  in  fee  simple  in  a  tract  of  land.  Of  this  land  he  retained  as  much 
as  was  necessary  for  his  own  use,  as  his  own  demesne,(A)  and  usually 
built  upon  it  a  mansion  or  manor  house.  Part  of  this  demesne  was  in 
the  occupation  of  the  villeins  of  the  lord,  who  held  various  small  parcels 
at  his  will,  for  their  own  subsistence,  and  cultivated  the  residue  for  their 
lord's  benefit.  The  rest  of  the  cultivable  land  was  granted  out  by  the 
lord  to  various  freeholders,  subject  to  certain  stipulated  rents  or  services, 
as  u  to  plough  ten  acres  of  arable  land,  parcel  of  that  which  remained  in 
the  lord's  possession,  or  to  carry  his  dung  unto  the  land,  or  to  go  with 
him  to  war  against  the  Scots. "(i)  The  barren  lands  which  remained 
formed  the  lord's  waste,  over  which  the  cattle  of  the  tenants  were 
allowed  to  roam  in  search  of  pasture. (/)     In   this  way  manors  were 

(ff)  Bract,  c.  19,  fol.  48  b  ;  Britton,  c.  66. 

(h)  Attorney-General  v.  Parsons,  2  Cro.  &  Jerv.  279,  308. 

(i)  Perkins's  Profitable  Book,  s.  670. 

(j)  In  the  recent  case  of  Lord  Dunraven  v.  Llewellyn,  15  Q.  B.  791  (E.  C.  L.  vol.  69), 
the  Court  of  Exchequer  Chamber  held  that  there  was  no  general  common  law  right 
of  tenants  of  a  manor  to  common  on  the  waste.  But,  in  the  humble  opinion  of  the 
author,  the  authorities  cited  by  the  Court  tend  to  the  opposite  conclusion.  The  rea- 
sons for  this  opinion  will  be  found  in  Appendix  C. 

v.  Sergeant,  1  Wharton  337) ;  that  it  con-  all  his  remedies  for  the  ground  rent  must 

tinues  to  exist  though  the  instrument  re-  rest   on  his   deed.     It  has  been  doubted, 

serving  it  be   destroyed;    that  a  right  of  however,  by  the   most  eminent  authority 

distress  is  incident  to  such  an  estate ;  that  whether  this  point  was  really  involved  in 

the  distress  in  this  case  was  not  by  virtue  Wallace  v.  Harmstead,  as  there  were  other 

of  the  deed,  but  founded  on  an  inherent  and  sufficient  grounds  for  the  judgment  in 

quality  of  the  grantor's  estate,  and  that  that  case.     See  a  very  learned  and  elab- 

the  reference  to  the  deed   in   the  avowry  orate  review  of   the   case  and  the  whole 

was  only  for  the  purpose  of  denning  the  subject  in  Judge  Sharswood's  Lecture  on 

estate  and  the  amount  of  the  rent.     The  the  Feudal  Law  (Lectures  Introductory  to 

court,  however,  was  of  opinion  that  the  the  Study  of  the  Law,  Phila.  1870,  Lect.  8), 

right  of  distress  was  incident  to  the  rent  and  also,  Lect.  7,  on  the  Common  Law  of 

only  by  force  of  the  reversion  of  the  land  Pennsylvania;     and    Morris's    edition    of 

remaining  in  the  owner,  and  that  title  to  Smith  on  Landlord  and  Tenant,  p.  6,  n. 
land  in  Pennsylvania  being  allodial,  there         Some  States,  as  Connecticut,  New  York, 

was  no  reversion  in  the  grantor,  notwith-  New  Jersey,  South  Carolina,  and  Michigan, 

standing  the  absence  of  the  statute  Quia  have,   by  express  statutes,  declared  their 

emjytores  in  that  State,  and  therefore  that  lands  allodial.  M. 


OF   THE    TENURE    OF   AN    ESTATE   IN    FEE    SIMPLE.  119 

created,(&)  every  one  of  which  is  of  a  date  prior  to  the  statute  of  Quia 
emptores,(l)  except,  perhaps,  some  which  may  have  been  created  by  the 
king's  tenants  in  capite  with  license  from  the  crown.(ra)     The  lands  held 
by  the  villeins  were  the  origin  of  copyholds,  of  which  more  hereafter.(w) 
Those  granted  to  the  *freemen  were  subject  to  various  burdens,    j-*^20] 
according    to    the    nature    of   the  tenure.     In   the   tenure  by 
knight's    service,  then    the    most    universal    and    honorable   species  of 
tenure,  the  tenant  of  an  estate  of  inheritance,  that  is,  of  an  estate  of  fee 
simple  or  fee  tail,(o)  was  bound  to  do  homage  to  his  lord,  kneeling  to 
him,  professing  to  become  his  man,  and   receiving  from  him  a  kiss.(p)1 
The  tenant  was  moreover  at   first  expected,  and   afterwards  obliged,  to 
render  to  his  lord  pecuniary  aids,  to  ransom  his  person,  if  taken  prisoner, 
to  help  him  in  the  expense  of  making   his  eldest  son  a  knight,  and  in 
providing  a  portion  for  the  eldest  daughter  on  her  marriage.     Again, 
on  the  death  of  a  tenant,  his  heir  was  bound  to  pay  a  fine,  called  a  relief, 
on  taking  to  his  ancestor's  estate.^)     If  the  heir  were  under  age,  the 
lord  had,  under  the  name  of  tvardship,  the  custody  of  the  body  and  lands 
of  the  heir,  without  account  of  the  profits,  till  the  age  of  twenty-one 
years  in  males,  and  sixteen  in  females ;  when  the  wards  had  a  right  to 
require  possession,  or  sue  out  their   livery,  on   payment  to  the  lord  of 
half  a  year's  profits  of  their  lands.     In  addition  to  this,  the  lord  possessed 
the  right  of  marriage  (maritagium),  or  of  disposing  of  his  infant  wards 
in  matrimony,  at  their  peril  of  forfeiting  to  him,  in  case  of  their  refusing 
a  suitable  match,  a  sum  of  money  equal  to  the  value  of  the  marriage  ;2 

(k)  See  Scriv.  Cop.  1  ;  Watk.  Cop.  6,  7  ;  2  Black.  Com.  90. 

(I)   18  Edw.  I.  c.  1.  (?«)   1  Watk.  Cop.  15  ;  ante,  p.  62. 

(n)  Post,  chapters  on  Copyholds.  (o)   Litt.  s.  90. 

(p)  See  a  description  of  homage,  Litt.  ss.  85,  86,  87  ;  2  Bl.  Com.  53. 

\q)  Scriven  on  Copyholds  738  et  seq. 


i  The  importance  of  homage,  as  an  inci-  The  penalty  at  first  for  marrying  without 

dent  of  tenure,  was  felt  both  by  the  lord  consent  was   absolute   forfeiture,  but  this 

and  vassal— by  the  former  because  until  rigor  was  subsequently  mitigated    to  the 

he  had  received  homage  of  the  heir,  he  limited  forfeiture  mentioned  in  the  text, 

was  not  entitled  to  wardship ;  and  by  the  and  the  right  of  marriage  of  wards  of  the 

latter  because  it  anciently  bound  the  lord  crown    was    constantly    purchased   by    or 

to  warranty  of  the  fief.                             R.  given  to  courtiers  who  made  the  most  out 

2  This  right  of  marriage  was  one  of  the  of  the  estates  of  the  wards  by  either  mar- 
most  onerous  of  the  feudal  burdens.  It  rying  them  to  their  own  relations,  or  de- 
appears  to  have  had  its  rise  upon  the  con-  manding  an  exorbitant  price  for  their  con- 
tinent, where  fiefs  were  descendible  to  fe-  sent,  So  late  as  the  reign  of  Charles  I.,  a 
male  heirs,  but  between  the  times  of  Glan-  prolonged  litigation  having  been  carried 
ville  and  Bracton  the  right  had  extended  on  between  the  families  of  Lady  Preston 
also  to  male  heirs.     Wright's  Tenures  95.  and  the  Earl  of  Ormond,  it  had  beeu  pro- 


120  OF    CORPOREAL    HEREDITAMENTS. 

that  is,  what  the  suitor  was  willing  to  pay  down  to  the  lord  as  the  price 
of  marrying  his  ward ;  and  double  the  market  value  was  to  be  forfeited, 
if  the  ward  presumed  to  marry  without  the  lord's  consent. (r)1  The  king's 
r*i  91 1  tenants  in  capite  were  moreover  subject  to  many  burdens  and  *re- 
L  J  straints,  from  which  the  tenants  of  other  lords  were  exempt.(s) 
Again,  every  lord  who  had  two  tenants  or  more  had  a  right  to  compel 
their  attendance  at  the  court  baron  of  the  manor,  to  which  his  grants  to 
them  had  given  existence ;  this  attendance  was  called  suit  of  court,  and 
the  tenants  were  called  free-suitors. (t)  And  to  every  species  of  lay 
tenure,  as  distinguished  from  clerical,  and  whether  of  an  estate  in  fee 
simple,  in  tail,  or  for  life,  or  otherwise,  there  was  inseparably  incident  a 
liability  for  the  tenant,  whenever  called  upon,  to  take  an  oath  of  fealty 
or  fidelity  to  his  lord. (it) 

At  the  present  day,  however,  a  much  greater  simplicity  and  uniformity 
will  be  found  in  the  incidents  of  the  tenure  of  an  estate  in  fee  simple,  for 
there  is  now  only  one  kind  of  tenure  by  which  such  an  estate  can  be  held  ; 
and  that  is  the  tenure  of  free  and  common  socage. (x)     The  tenure  of 

(r)  2  Black.  Com.  63  et  seq. ;  Scriven  on  Copyholds  729.  Wardship  and  marriage 
were  no  parts  of  the  great  feudal  system,  but  were  introduced  into  this  country,  and 
perhaps  invented,  by  the  Normans.     2  Hall    Midd.  Ages  415. 

(s)  As  primer  seisin,  involuntary  knighthood  in  certain  cases  and  fines  for  alienation. 

(t)  Gilb.  Ten.  431  et  seq. ;  Scriven  on  Copyholds  719  et  seq. 

(u)  Litt.  ss.  91,  131,  132  ;   Scriv.  Cop.  732. 

(x)  2  Black.  Com.  101. 

posed,  by  their  marriage,  to  unite  the  es-  after  he  was  out  of  wardship,  his  woods  de- 

tates,   which  met  the   approbation    of  all  cayed,   houses  fallen  down,  stock  wasted 

the  parties  interested,  as  well  as  the  favor  and  gone,  lands  let  forth  and  ploughed  to  be 

of  the  king ;  but  the  Earl  of  Warwick,  who  barren,'  to  reduce  him  still  further,  he  was 

was  grantee  of  the  right  of  marriage  of  the  yet  to  pay  half  a  year's  profits  as  a  fine  for 

lady,  extorted  £10,000  as  the  price  of  his  suing  out  his  livery ;  and  also  the  price  or 

consent  to  the  marriage.     Sullivan's  Lee-  value  of  his  marriage,  if  he  refused  such 

tures    134.     This,   with   the    other   conse-  wife  as  his  lord  and  guardian  had  bartered 

quences  of  tenure  by  knight  service,  was  for,  and  imposed  upon  him  ;  or  twice  that 

abolished  at  the  Restoration,    by  the  act  value  if  he  married  another  woman.     Add 

referred  to,  infra,  at  page  123.  R.  to  this  the  untimely  and  expensive  honor 

1  These   incidents  of  the   feudal   tenure  of  knighthood,  to  make    his    poverty  more 

are  thus  summed  up  by  Blackstone  :  "The  completely  splendid.     And  when  by  these 

heir  on  the  death  of  his  ancestor,  if  of  full  deductions  his    fortune   was   so  shattered 

age,  was  plundered  of  the  first  emoluments  and  ruined  that,  perhaps,  he  was  obliged 

arising  from   his    inheritance,  by  way  of  to  sell  his  patrimony,  he  had  not  even  the 

relief  and  primer  seisin;  and,  if  under  age,  poor  privilege  allowed  him,  without  pay- 

of  the  whole  of  his  estate  during  infancy,  ing  an  exorbitant  fine  for  a  license  of  alien- 

And  then,  as  Sir  Thomas  Smith  very  feel-  alion."     2  Bl.  Com.  76.  R. 

ingly  complains, '  when  he  came  to  his  own, 


OF    THE    TENURE    OF    AN    ESTATE    IN    FEE    SIMPLE.  121 

free  .and  common  socage  is  of  great  antiquity  ;  so  much  so  that  the  mean- 
ing of  the  term  socage  is  the  subject  only  of  conjecture.(?/)  Compara- 
tively few  of  the  lands  in  this  country  were  in  ancient  times  the  sub- 
jects of  this  tenure:  the  lands  in  which  estates  in  fee  simple  r*i991 
*were  thus  held  appear  to  have  been  among  those  which  escaped  J 

the  grasp  of  the  Conqueror,  and  remained  in  the  possession  of  their  an- 
cient Saxon  proprietors. (z)  The  owners  of  fee  simple  estates,  held  by  this 
tenure,  were  not  villeins  or  slaves,  but  freemen  ;(a)  hence  the  term  free 
socage.  No  military  service  was  due,  as  the  condition  of  the  enjoyment 
of  the  estates.  Homage  to  the  lord,  the  invariable  incident  to  the  mili- 
tary tenures, (b)  was  not  often  required  ;(c)  but  the  services,  if  any,  were 
usually  of  an  agricultural  nature  :  a  fixed  rent  was  sometimes  reserved  ; 
and  in  process  of  time  the  agricultural  services  appear  to  have  been  very 
generally  commuted  into  such  a  rent.  In  all  cases  of  annual  rent,  the 
relief  paid  by  the  heir,  on  the  death  of  his  ancestor,  was  fixed  at  one 
year's  rent.(d)  Frequently  no  rent  was  due;  but  the  owners  were 
simply  bound  to  take,  when  required,  the  oath  of  fealty  to  the  lord  of 
whom  they  held,(e)  to  do  suit  at  his  court,  if  he  had  one,  and  to  give  him 
the  customary  aids  for  knighting  his  eldest  son  and  marrying  his  eldest 
daughter. (/)  This  tenure  was  accordingly  more  beneficial  than  the  mili- 
tary tenures,  by  which  fee  simple  estates,  in  most  other  lands  in  the 
kingdom,  were  held.  True,  the  actual  military  service,  in  respect  of 
lands,  became  gradually  commuted  for  an  escuage  or  money  payment, 
assessed  on  the  tenants  by  knight's  service  from  time  to  time,  first  at  the 
discretion  of  the  crown,  and  afterwards  by  authority  of  parliament  ;(g) 
and  this  commutation  appears  to  have  generally  prevailed  [-#190-1 
from  so  early  a  period  as  the  time  *of  Henry  II.     But  the  great  -* 

{y)  See  Litt.  s.  119;  Wright's  Tenures  143 ;  2  Black.  Com.  80  ;  Co.  Litt.  86  a,  n.  (1)  ; 
2  Haltam's  Middle  Ages  481.  The  controversy  lies  between  the  Saxon  word  soc,  which 
signifies  a  liberty,  privilege,  or  franchise,  especially  one  of  jurisdiction,  and  the  French 
word  soc,  which  signifies  a  ploughshare.  In  favor  of  the  former  is  urged  the  beneficial 
nature  of  the  tenure,  and  also  the  circumstance  that  socagers  were,  as  now,  bound  to 
attend  the  court  baron  of  the  lord,  to  whose  soc  or  right  of  justice  they  belonged.  In 
favor  of  the  latter  derivation  is  urged  the  nature  of  the  employment,  as  well  as  the 
most  usual  condition  of  tenure  of  the  lands  of  sockmen,  who  were  principally  engaged 
in  agriculture.  The  former  appears  to  be  the  more  probable  derivation.  See  Sir  H. 
Ellis's  Introduction  to  Domesday,  vol.  i.  p.  69. 

(z)   2  Hallam's  Middle  Ages  481.  (a)  Ibid.;  2  Black.  Com.  60,  61. 

(6)   Co.  Litt.  65  a,  67  b.  n.  (1).  (c)  Co.  Litt.  86  a. 

(d)  Litt.  s.  126  ;  2  Black.  Com.  87.  See  Passingham,  app.,  Pitty,  resp.,  17  C.  B.  299, 
300  (E.  C.  L.  R.  vol.  84). 

(e)  Litt.  ss.  117,  118,  131.  (/)  Co.  Litt.  91  a  ;  2  Black.  Com.  86. 
(g)  2  Hallam's  Middle  Ages  439,  440  ;  2  Black.  Com.  74 ;  Wright's  Tenures  131  ; 

Litt.  s.  97  ;  Co.  Litt.  72  a. 


123  OF    CORPOREAL    HEREDITAMENTS. 

superiority  of  the  socage  tenure  was  still  felt  in  its  freedom  from  the  bur- 
dens of  wardship  and  marriage,  and  other  exactions,  imposed  on  the 
tenants  of  estates  in  fee  held  by  the  other  tenures.(A)  The  wardship  and 
marriage  of  an  infant  tenant  of  an  estate  held  in  socage  devolved  on  his 
nearest  relation  (to  whom  the  inheritance  could  not  descend),  who  was 
strictly  accountable  for  the  rents  and  profits. («)  As  the  commerce  and 
wealth  of  the  country  increased,  and  the  middle  classes  began  to  feel 
their  own  power,  the  burdens  of  the  other  tenures  became  insupportable ; 
and  an  opportunity  was  at  last  seized  of  throwing  them  off.  Accordingly, 
at  the  restoration  of  King  Charles  II.,  an  act  of  parliament1  was  insisted 
on  and  obtained,  by  which  all  tenures  by  knight's  service,  and  the  fruits 
and  consequences  of  tenures  in  capite,(j)  were  taken  away,  and  all  tenures 
of  estates  of  inheritance  in  the  hands  of  private  persons  (except  copyhold 
tenures)  were  turned  into  free  and  common  socage ;  and  the  same  were 
for  ever  discharged  from  homage,  wardships,  values,  and  forfeitures  of 
marriage,  and  other  charges  incident  to  tenures  by  knight's  service,  and 
from  aids  for  marrying  the  lord's  daughter  and  for  making  his  son  a 
knight.(&) 

The  right  of  wardship  or  guardianship  of  infant  tenants  having  thus 
been  taken  away  from  the  lords,  the  opportunity  was  embraced  of  giving 
to  the  father  the  right  of  appointing  guardians  to  his  children.  It  was 
accordingly  provided  by  the  same  act  of  parliament^)  that  the  father  of 
any  child  under  age  and  not  married  at  the  time  of  his  death  may,  by 
deed  executed  in  his  lifetime,  or  by  his  will  in  the  presence  of 
*-  J  two  or  more  credible  witnesses,  in  such  manner  and  from  time  to 
time  as  he  shall  think  fit,  dispose  of  the  custody  and  tuition  of  such  child 
during  such  time  as  he  shall  remain  under  the  age  of  one-and-twenty 
years,  or  any  lesser  time,  to  any  person  or  persons  in  possession  or  re- 
mainder.2    And  this  power  was  given,  whether  the  child  was  born  at  his 

(h)  2  Hallam's  Middle  Ages  481.  (i)  2  Black.  Com.  87,  88. 

(j)  Co.  Litt.  108  a,  n.  (5). 

(A)  Stat.  12  Car.  II.  c.  24.     The  12th  Car.  II.,  a.  d.  1660,  was  the  first  year  of  his 
actual  reign. 

(I)  Stat.  12  Car.  II.  c.  24,  s.  8.     See  Morgan  v.  Hatchell,  19  Beav.  86. 

1  Blackstone  says  that  this  statute  "  was  few  statutes  which  so  secured  the  national 

a  greater  acquisition  to  the  civil  property  independence  and  abridged  the  royal  pre- 

of  the  kingdom  than  even  Magna   Charta  rogative.     1  Stephen's  Engl.  Const.  421. 
itself."    2  Com.  77.     Parliament  gave  the         2  This  statute    has    been   adopted,  with 

king  an  annual  income  of  £100,000,  in  lieu  more    or   less  variation,   in    many  of  the 

of  the  profits  of  the  Court  of  Wards,  &c,  American  States.     2  Kent  224.  M. 

abolished  by  the  act.     There  certainly  are 


OF   THE   TENURE    OF    AN    ESTATE    IN    FEE    SIMPLE.  124 

father's  decease  or  only  in  ventre  sa  mere  at  that  time,  and  whether  the 
father  were  within  the  age  of  one-and-twenty  years,  or  of  full  age  But 
it  seems  that  the  father,  if  under  age,  cannot  now  appoint  a  guardian  by 
will  ■  for  the  Wills  Act  now  enacts  that  no  will  made  by  any  person 
under  the  age  of  twenty-one  years  shall  be  valid.(m)  In  other  respects, 
however,  the  father's  right  to  appoint  a  guardian  still  continues  as  origi- 
nally provided  by  the  above-mentioned  statute  of  Charles  II.  lhe 
guardian  so  appointed  has  a  right  to  receive  the  rents  of  the  child  s 
lands  for  the  use  of  the  child,  to  whom,  like  a  guardian  m  socage,  he  is 
accountable  when  the  child  comes  of  age.  A  guardian  cannot  be  ap- 
pointed by  the  mother  of  a  child,  or  by  any  other  relative  than  the 
father,  (w) 

A  rent  is  not  now  often  paid  in  respect  of  the  tenure  of  an  estate  in 
fee  simple.1     When  it  is  paid,  it  is  usually  called  a  quit  rent,(p)  and  is 

(m)  Stat.  7  Will.  IV.  and  1  Vict.  c.  26,  s.  7  ;  1  Jarm.  Wills  36,  1st  ed.  ;  34,  2d  ed.  ;  39, 

3dH  Ex   parte  Edwards,  3  Atk.  519;  Bac.  Abr.  tit.  Guardian  (A)  3.     See  also  Mr. 
Hargrave's  Notes  to  Co.  Litt.  88  b. 

(o)   2  Black.  Com.  43;  Co.  Litt.  85  a,  n.  (1).  ^ 

i  Such  rents  were,  however,  quite  com-  covenant  to  the   contrary.     The  rent    re- 

mon  in  many  of  our  States;  and  at  the  served  upon  these  conveyances  in  fee  is 

present  day  it  is  found  a  convenient  way  real  estate,  and  subject  to  all  its  incidents  ; 

of  disposing  of  unimproved  property  in  the  and  the  remedies  for  its  recovery  are  firs  , 

large  cities  of  Pennsylvania  to  grant  it  in  distress,  which    is    of  common  right    al- 

fee  simple,  reserving  an  annual  rent,  called  though  such  a  clause  is  usually  inserted  in 

a  ground-rent,  as  the  entire  consideration,  the  deed  ;  secondly,  if  sufficient    distress 

The  burden  of  payment  of  a  present  sum  is  cannot  be  had,  by  re-entry  upon  the  land, 

thus  relieved,  and  the  available  means  of  to  hold  as  of  the  grantor  s  former  estate  ; 

the  purchaser  employed  in  the    improve-  and  thirdly,  by  a  personal  action  of  cove- 

ment  of  the  property,  which  is  generally,  nant,  which    may  be    maintained,   firstly, 

required  by  covenant  to  that  effect,  in  order  against  the  original  covenantor,  even  after 

to  secure  the  ground  rent.     Until  the  year  he  has  parted  with  the  land,  and  the  judg- 

1850,  it  was  also  usual  to  insert  in  the  deed  ment,  when  thus  obtained,  may  be  enforced 

a  covenant  that  the  grantee  could  within  a  upon  the   land   in  the  hands  of  the  pur- 

stipulated  number  of  years  extinguish  the  chaser  :  Brown  v  Johnson,  4  Rawle  146 

.round-rent  by  the  payment  of  its  principal  though  in  Quain  s  Appeal,  10  Hams  512, 

sum     After  that  time  had  expired,  the  rent  it  was  decided  by  the  Supreme  Court,  that 

became  irredeemable,  unless  at  the  option  covenant  will  not  lie  against  the  personal 

of  the  owner  of  the  rent  for  the  time  being,  representative  of  a  deceased  covenantor  ex- 

As  this  gave  rise  to  a  perpetual  charge  or  cept  for  arrears  due  in  his  lifetime      This 

incumbrance  upon  real  estate,  the  Legisla-  decision  was  contrary  to  the  genera  1  prac- 

ture  in  that  year  provided  that  all  ground-  tice  of  the  profession  (see  Scott  v.  Lunt  . 

rents  to  be  thereafter  reserved  should  be  Admr.,    7    Pet.    605)    which,  in    order     o 

redeemable  at  any  lapse  of  time  after  their  avoid  the  necessity  of  deducing  the  title 

creation,  notwithstanding  any  condition  or  from  the  original  covenantor  to  the  present 


124  OF    CORPOREAL    HEREDITAMENTS. 

almost  always  of  a  very  trifling  amount  :  the  change  in  the  value  of 
money  in  modern  times  will  account  for  this.  The  relief  of  one  year's 
quit  rent,  payable  by  the  heir  on  the  death  of  his  ancestor,  in  the  case  of 
a  fixed  quit  rent,  was  not  abolished  by  the  statute  of  Charles,  and  such 
9--.  relief  is  ^accordingly  still  due.(p)  Suit  of  court  also  is  still 
[  -1  obligatory  on  tenants  of  estates  in  fee  simple,  held  of  any  manor 
now  existing.^)  And  the  oath  of  fealty  still  continues  an  incident  of 
tenure,  as  well  of  an  estate  in  fee  simple  as  of  every  other  estate,  down 
to  a  tenancy  for  a  mere  term  of  years ;  but  in  practice  it  is  seldom  or 
never  exacted. (r) 

There  is  yet  another  incident  of  the  tenure  of  estates  in  fee  simple  ; 
an  incident  which  has  existed  from  the  earliest  times,  and  is  still  occa- 
sionally productive  of  substantial  advantage  to  the  lord.  As  the  donor 
of  an  estate  for  life  has  a  certain  reversion  on  his  tenant's  death,  and  as 
the  donor  of  an  estate  in  tail  has  also  a  reversion  expectant  on  the  de- 
cease of  his  tenant  and  failure  of  his  issue,  but  subject  to  be  defeated  by 
the  proper  bar,  so  the  lord,  of  whom  an  estate  in  fee  simple  is  held,  pos- 
sesses in  respect  of  his  lordship  or  seignory,  a  similar(s)  though  more 
uncertain  advantage,  in  his  right  of  escheat;  by  which,  if  the  estate 
happens  to  end,  the  lands  revert  to  the  lord,  by  whose  ancestors  or  pre- 
decessors they  were  anciently  granted  to  the  tenant. (£)  When  the  tenant 
of  an  estate  in  fee  simple  dies,  without  having  alienated  his  estate  in 

(p)   Co.  Litt.  85  a,  n.  (1) ;  Scriv.  Cop.  738. 

(q)  Scriv.  Cop.  736.  (r)  Co.  Litt.  67  b,  n.  (2),  68  b,  n.  (5). 

(s)  Watk.  Descent,  p.  2  (pp.  5,  6,  7,  4th  ed.). 

(t)   2  Black.  Com.  72;  Scriv.  Cop.  757  et  seq. 


owner  of  the  land,  had  been  to  sue  the  rent  can  only,  upon  principle,  be  enforced 
former,  if  living,  and  his  representatives,  if  where  there  is  some  privity  between  the 
dead.  [Quain's  Appeal,  however,  has  been  covenantee  and  the  assignee  of  the  cove- 
affirmed  in  subsequent  cases,  and  must  be  nantor  :  Milnes  v.  Branch,  5  Maule  &  Selw. 
taken  to  be  the  settled  law,  with  the  modi-  1 1  ;  which  privity  exists  in  Pennsylvania, 
fication  that  covenant  will  lie  against  the  because  the  statute  of  quia  emptores  is  not 
personal  representatives  of  a  deceased  in  force  in  that  State :  Ingersoll  v.  Ser- 
covenantor  for  rent  accruing  after  his  geant,  1  Whart.  337  ;  and  although  before 
death,  but  the  judgment  will  be  restricted  that  decision  such  a  liability  had  been  en- 
to  the  land.  Williams's  Appeal,  11  Wright  forced  (Streaper  v.  Fisher,  1  Rawle  155; 
283;  Gardner  v.  Painter,  3  Phila.  K.  365.  St.  Mary's  Church  v.  Miles,  1  Whart.  229), 
M.]  Covenant  may  be  maintained,  second-  yet  it  must  be  presumed  to  have  been  sup- 
!\.  against  the  owner  of  the  land  in  whose  ported  rather  by  the  common  law  of  that 
time  it  falls  due  ;  in  other  words,  the  cove-  State  than  by  principle  or  authority.  See 
nant  runs  with  the  land,  and  binds  its  the  note  to  Spencer's  Case,  1  Smith's  Lead- 
on  ncr  for  the  time  being.  The  liability,  ing  Cases  131,  135.  R. 
however,  of  an  assignee  to   pay  ground- 


OF   THE   TENURE    OF   AN   ESTATE    IN    FEE    SIMPLE.  125 

hfa  lifetime  or  by  his  will,(«)  and  without  leaving  any  heirs  lineal  or 
c    1       •  1   e  Aer  of  the  purchaser  or  of  the  person  last  ent.tled  to  the 
aids,  such  lauds  «M  *(as  it  is  called)  to  the  lord  of  whom 
thev  were  held.'     Bastardy   is  the  most  usual  cause  of  the 
■ ulur  erf  heirs;  for  a  bastard   is  in  law  nulUus  fiUuS ;    and,   bemg 
nobody'    son,  h     can  consequently  have  no  brother  or  s.ster    or  any 
other  he  r  than  an  heir  of  his  body-W     H  such  a  person,  therefore  were 
tpu  chase  lauds,  that  is,  to  acquire  an  estate  in  fee  simple  ,n  them 
a  Jwere  to  die  possessed  of  them  without  having  made  awl  and  wttho 
leaving  any  issue,  the  lands  would  escheat  to  the  lord  of  the  fee,    or 
want  of  heirs.'     Again,  before  forfeitures  for  treason  and  felony  were 
bol  sh  d  W  sentence  of  death  pronounced  on  a  person  convicted  of 
nigh  treason  or  murder,  or  of  abetting,  procunngj  or  connselhng  the 
s  me  (x)  caused  his  blood  to  be  attainted  or  corrupted,  and  to  lose  its 
Ilellle  quality.'     In  cases  of  high  treason,  the  crown  became  ent.tled 

(.,  Ye„  BooU,  49  Bdw.  HI.  c.  H;  Co ^,236  a,  o   (,,;  BcH,  **£;™?) 
m»7  perhaps  be  doubted  whether  the  new  W ,11     Act  (     w 

extends  to  this  ease,  end  whether  therefor  »«  ,.„  5absists  „8  ,„ 

witnesses  should    not  attest  the  will  as  under   tne  oiu  , 

wills  to  which  the  new  act  does  not  extend  (see  sect   2). 

(1)  Co.  Litt.  3  b  ;  2  Black.  Com.  347  ;  Bac.  Ab,  tit.  Bastardy  (B). 

(w)   By  stat.  33  &  34  Vict.  c.  23  ;  ante,  p.  57. 

L     Stat.  54  Geo.  HI.  o.  145  ;  9  Geo.  IV.  c.  31,s.  2,  repealed  by  stat.  24  &  25  Vict.  c. 

95,  and  re-enacted  by  stat.  24  &  25  Vict.  c.  100.  s-  8-  . 

-T^T^Tf .^^i^ndT^i.i^ey  succeed  to  the  mother  but  not  to  her 

marv  of  the  statutes  of  the  several  States     kindred;  they   succeed    to   each   other   m 

Tthe  subject  of  escheat  will  be  found  in     Vermont,    Connecticut,    North    Carol     a, 

he  note,  at  the  end  of  Ch.  III.  tit.  XXIX.,     Georgia,  and  Tennessee.     Some   of  the  e 

to  Greenleaf  's  Cruise  on  Real  Property.         States    have,  moreover,  adopted  the  rule 
to  Uieenieai      v,  ^  ^  ^  ^^  ^  ^  ^.^  the  subsequeQt 

*  This  rigor   of  the  common  law  is  be-  marriage  of  the  parents  legitimatizes  their 

lieved  to  exist  at  the  present  day  only  in  previous  offspring.                                    *  • 

1  J  States  of  New  Jersey,   Delaware,  and  a  This  was  formerly  the ,    common  law 

South  Carolina      The    Pennsylvania    sta-  not  only  as  to  treason,  but  every  species 

Uite     howev  "which    gives    to    illegiti-  of  felony.     The  statute  of  7  Anne,  ch.  22, 

Z  ^.andthei  mother  tlie  right  to  inherit  abolished     after    the    Pretender, .death 

from  each   other,  was   passed  as  lately  as  forfeiture  for  treason  beyond     h life   of 

1855.     In  the  other  States  the  legislation  the  offender :  but  that  of  17  Go.  II    c    29 

is    various;    in    some    of    them,    such    as  postponed  its  operation  till   the  death of 

Line    New  Hampshire,  Vermont,  Rhode  the  Pretender  and  h« >  sons  ;  and  b    h  of 

Uland      Connecticut     Virginia,    Indiana,  these  were  repealed  by  the  39  Geo.  111.  c. 

K  B °ly    iissour? 'and  Florida,  the  Y,o-  93;  so  that  in   the  case  of  high  treason 

vlsioL  bdng  substantially  the  same  as  in  the  law  is  the  same  as  it  was  before  the 

Pennsylvania;    in    others,    as    Massachu-  statute  of  Anne. 

fet      OhTo   North  Carolina,  Georgia,  Ten-  As  to  other  felomes,  however,  the  sta, 

nesl?  Illinois,  Michigan/and  Arkansas,  tute   of  54   Geo.  II.  c.  145,   has  provided 


126  OF    CORPOREAL    HEREDITAMENTS. 

by  forfeiture  to  the  lands  of  the  traitor  ;(y)  but  in  the  other  cases  the 
lord,  of  whom  the  estate  was  held,  became  entitled  by  escheat  to  the 
lands,  after  the  death  of  the  attainted  person  ;(z)  subject,  however,  to  the 
queen's  right  of  possession  for  a  year  and  a  day,  and  of  committing  waste, 
called  the  queen's  year,  day  and  waste,— a  right  usually  compounded 
for.(a)  When  an  escheat  occurs,  the  crown  most  frequently  obtains  the 
lands  escheated,  in  consequence  of  the  before-mentioned  rule,  that  the 
crown  was  the  original  proprietor  of  all  the  lands  in  the  kingdom. (b) 
But  if  *there  should  be  any  lord  of  a  manor,  or  other  person, 
L  -*  who  could  prove  that  the  estate  so  terminated  was  held  of  him, 
he,  and  not  the  crown,  would  be  entitled.(c)  In  former  times,  there 
were  many  such  mesne  or  intermediate  lords ;  every  baron,  according  to 
the  feudal  system,  had  his  tenants,  and  they  again  had  theirs.  The 
alienation   of  lands  appears,  indeed,  as  we  have  seen,(d)  to  have  most 

(y)  Stat.  26  Hen.  VIII.  c.  13,  s.  5 ;  5  &  6  Edw.  VI.  c.  11,  s.  9  ;  39  Geo.  III.  c.  93  ;  4 
Black.  Com.  381. 

(2)  2  Black.  Com.  245;  4  Black.  Com.  380,  381  ;  Swinburne,  part  2,  sect,  13;  Bac. 
Abr.  tit.  Wills  and  Testaments  (B). 

(a)  4  Black.  Com.  385. 

(b)  Lands  escheated  or  forfeited  to  the  crown  are  frequent!}'  restored  to  the  families 
of  the  persons  to  whom  such  lands  belonged,  pursuant  to  stat.  39  &  40  Geo.  III.  c.  88, 
s.  12,  explained  and  amended  by  stats.  47  Geo.  III.  sess.  2,  c.  24,  and  59  Geo.  III.  c.  94, 
and  extended  to  forfeited  leaseholds  by  stat.  6  Geo.  IV.  c.  17. 

(c)  Doe  d.  Hayne  and  His  Majesty  v.  Redfern,  12  East  96. 

(d)  Ante,  pp.  38,  61. 


that  no  attainder,  except  for  high  treason,  Romilly's  bill  was  its  passage  as  it  now 

petit    treason,    murder,    or    abetting    the  stands. 

same,    shall    extend   to    the    disinheriting         The  Constitution  of  the    United    States 

any  heir,  or  to  the  prejudice  of  any  person  expressly   declares  that   "no  attainder  of 

except  the  offender  during  his   life  only,  treason  shall  work  corruption  of  blood,  or 

As    originally  introduced  by  Sir  Samuel  forfeiture,  except    during  the    life  of   the 

Romilly  into  the  House  of  Commons,  this  person  attainted,"  Art.   III.  Sect.    iii.  1  ; 

bill  proposed  to  do  away  with  all  corrup-  and  in  none  of  the  States  does  treason  or 

tion  of  blood,  but  it  was  opposed  by  Mr.  felony    work    corruption    of    blood.      In 

Yorke,    whose    father,    Lord    Hardwicke's  Pennsylvania,    Delaware,    and    Kentucky, 

son,  had,  in  1744,  written  the  well-known  the  constitutions  declare  that  there  shall 

essay  called  "Some  Considerations  on  the  be  no  forfeiture  for  treason,  except  for  the 

Laws    of    Forfeiture    for    High    Treason,"  life  of  the  offender ;  in  Maryland,  that  there 

which  Lord   Campbell  considers   to  have  ought  to  be  no  forfeiture,  except  in  cases 

been   "  the    finest  juridical    treatise    that  of  treason  or  murder  ;  in  South  Carolina, 

had   appeared   in   the   English  language"  that  there  shall  be  no  forfeiture  of  lands  for 

(Lives  of  the  Chancellors,  vol.  5,  p.  298),  treason  of  persons  who  die  without  having 

though  Mr.  Yorke  himself,  at  a  later  pe-  been  attainted  ;  and  forfeiture  for  felony 

riod,    spoke    of    it    as    a    "very   juvenile  is  expressly  abolished.  In  other  States,  for- 

treatise."      2     Romilly's     Autobiography  feiture  is  believed  to  be  abolished,  either 

307.      The    result    of    the    opposition    to  expressly  or  by  strong  implication.      R. 


OF    THE    TENURE    OF    AN    ESTATE    IN    FEE    SIMPLE.  127 

generally,  if  not  universally,  proceeded  on  this  system  of  subinfeudation. 
But  now  the  fruits  and  incidents  of  tenure  of  estates  in  fee  simple  are 
so  few  and  rare  that  many  such  estates  are  considered  as  held  directly 
of  the  crown,  for  want  of  proof  as  to  who  is  the  intermediate  lord ;  and 
the  difficulty  of  proof  is  increased  by  the  fact  before  mentioned,  that, 
since  the  statute  of  Quia  emptores,  passed  in  the  reign  of  Edward  I.,(«) 
it  has  not  been  lawful  to  create  a  tenure  of  an  estate  in  fee  simple;  so 
that  every  lordship  or  seignory  of  an  estate  in  fee  simple  bears  date  at 
least  as  far  back  as  that  reign  :  to  this  rule  the  few  seignories,  which  may 
have  been  subsequently  created  by  the  king's  tenants  in  capite,  form  the 
only  exception. (/) 

A  small  occasional  quit  rent,  with  its  accompanying  relief, — suit  of 
the  Court  Baron,  if  any  such  exists, — an  oath  of  fealty  never  exacted, — 
and  a  right  of  escheat  seldom  accruing, — are  now  it  appears,  therefore, 
the  ordinary  incidents  of  the  tenure  of  an  estate  in  fee  simple.  There 
are,  however,  a  few  varieties  in  this  *  tenure  which  are  worth 
mentioning  ;  they  respect  either  the  persons  to  whom  the  estate  L  J 
was  originally  granted,  or  the  places  in  which  the  lands  holden  are 
situate.  And,  first,  respecting  the  persons :  The  ancient  tenure  of 
grand  serjeanty  was  where  a  man  held  his  lands  of  the  king  by  services 
to  be  done  in  his  own  proper  person  to  the  king,  as,  to  carry  the  banner 
of  the  king,  or  his  lance,  or  to  be  his  marshal,  or  to  carry  his  sword 
before  him  at  his  coronation,  or  to  do  other  like  services  :{g)  when,  by 
the  statute  of  Charles  II., (h)  this  tenure,  with  the  others,  was  turned 
into  free  and  common  socage,  the  honorary  services  above  described 
were  expressly  retained.  The  ancient  tenure  of  petit  serjeanty  was 
where  a  man  held  his  land  of  the  king,  "  to  yield  him  yearly  a  bow,  or 
a  sword,  or  a  dagger,  or  a  knife,  or  a  lance,  or  a  paire  of  gloves  of 
maile,  or  a  paire  of  gilt  spurs,  or  an  arrow,  or  divers  arrowes,  or  to  yield 
such  other  small  things  belonging  to  warre:"(z)  this  was  but  socage  in 
effect,^')  because  such  a  tenant  was  not  to  do  any  personal  service,  but 
to  render  and  pay  yearly  certain  things  to  the  king.  This  tenure  there- 
fore still  remains  unaffected  by  the  statute  of  Charles  II. 

Next,  as  to  such  varieties  of  tenure  as  relate  to  places : — These  are 

(e)   18  Edw.  Lei;  ante,  pp.  62,  118. 

(/)  By  stat.  13  &  14  Vict.  c.  60,  lands  vested  in  any  person  upon  any  trust,  or  by 
way  of  mortgage,  are  exempted  from  escheat.  This  act  repeals  a  former  statute,  4  & 
5  Will.  IV.  c.  23,  to  the  same  effect. 

(ff)  Litt.  s.  153.  (h)   12  Car.  II.  c.  24";  ante,  p.  123. 

(i)  Litt.  s.  159.  (/)  Litt.  s.  160;  2  Black.  Com.  81. 


128  OF    CORPOREAL    HEREDITAMENTS. 

principally  the  tenures  of  gavelkind,  borough-English,  and  ancient  de- 
mesne. The  tenure  of  gavelkind,  or,  as  it  has  been  more  correctly 
styled,(&)  socage  tenure,  subject  to  the  custom  of  gavelkind,  prevails 
chiefly  in  the  county  of  Kent,  in  which  county  all  estates  of  inheritance 
in  land(Z)  are  presumed  to  be  holden  by  this  tenure  until  the  contrary  is 
*shown.(m)  The  most  remarkable  feature  of  this  kind  of  tenure 
"-  J  is  the  descent  of  the  estate,  in  case  of  intestacy,  not  to  the  eldest 
son,  but  to  all  the  sons  in  equal  shares,(n)  and  so  to  brothers  and  other 
collateral  relations,  on  failure  of  nearer  heirs. (o)  It  is  also  a  remarkable 
peculiarity  of  this  custom,  that  every  tenant  of  an  estate  of  freehold 
(except  of  course  an  estate  tail)  is  able,  at  the  early  age  of  fifteen  years, 
to  dispose  of  his  estate  by  feoffment,^)  the  ancient  method  of  convey- 
ance, to  be  hereafter  explained.  There  is  also  no  escheat  of  gavelkind 
lands  upon  a  conviction  of  murder  ;(q)  and  some  other  peculiarities  of 
less  importance  belong  to  this  tenure.(r)  The  custom  of  gavelkind  is 
generally  supposed  to  have  been  a  part  of  the  ancient  Saxon  law,  pre- 
served by  the  struggles  of  the  men  of  Kent  at  the  time  of  the  Norman 
conquest ;  and  it  is  still  held  in  high  esteem  by  the  inhabitants,  so  that 
whilst  some  lands  in  the  county,  having  been  originally  held  by  knight's 
service,  are  not  within  the  custom,(«)  and  others  have  been  disgavclled, 
or  freed  from  the  custom,  by  various  acts  of  parliament,^)  any  attempt 
_.  *entirely  to  extinguish  the  peculiarities  of  this  tenure  has  uniformly 
L         "*    been  resisted. (u)     There  are  a  few  places,  in  other  parts  of  the 

(k)  Third  Report  of  Real  Property  Commissioner?,  p.  7. 

(Z)  Including  estates  tail,  Litt.  s.  2G5 ;  Robinson  on  Gavelkind  51,  94  (64,  119, 
3d  ed.). 

(m)  Robinson  on  Gavelkind  44  (54,  3d  ed.). 

(n)  Every  son  is  as  great  a  gentleman  as  the  eldest  son  is  :  Litt.  s    210. 

(o)  Rob.  Gav.  92  ;  3d  Rep.  of  Real  Property  Commissioners,  p.  9  ;  Crump  d.  Wool- 
ley  v.  Norwood,  7  Taunt.  362  (E.  C.  L.  R.  vol.  2)  ;  Hook  v.  Hook,  1  Hemming  &  Miller 
43;  in  opposition  to  Bac.  Abr.  tit.  Descent  ^D),  citing  Co.  Litt.  140  a. 

(p)  Rob.  Gav.  193  (248,  3d  ed.),  217  (277,  3d  ed.)  ;  2  Black.  Com.  84;  Sandy's  Con- 
Buetudines  Kanciae,  p.  165.     See  stat.  8  &  9  Vict.  c.  106,  s.  3. 

(g)  Rob.  Gav.  226  (228,  3d  ed.). 

(r)  The  husband  is  tenant  by  courtesy  of  a  moiety  only  of  his  deceased  wife's  land, 
until  he  marries  again,  whether  there  were  issue  born  alive  or  not  :  the  widow  also  is 
dowable  of  a  moiety  instead  of  a  third,  and  during  widowhood  and  chastity  only  ; 
estates  in  fee  simple  were  devisable  by  will,  before  the  statute  was  passed  empowering 
the  devise  of  such  estates  ;  and  some  other  ancient  privileges,  now  obsolete,  were 
attached  to  this  tenure.  See  Robinson  on  Gavelkind,  passim;  3d  Report  of  Real 
Property  Commissioners,  p.  9. 

(*)  Rob.  Gav.  46  (57,  3d  ed.).  (/)  See  Rob.  Gav.  75  (94,  3d  ed.). 

(u)  An  express  saving  of  the  custom  of  gavelkind  is  inserted  in  the  act  for  the  com- 
mutation of  certain  manorial  rights,  &c.     Stat.  4  &  5  Vict.  c.  35,  s.  80. 


OP    THE   TENURE    OF    AN    ESTATE    IN   FEE    SIMPLE.  130 

kingdom,  whore  the  course  of  descent  follows  the  custom  of  gavelkind  ;(.<■) 
but  it  may  be  doubted  whether  the  tenure  of  gavelkind,  with  all  its 
accompanying  peculiarities,  is  to  be  found  elsewhere  than  in  the  county 
of  Kent. (y) 

Tenure  subject  to  the  custom  of  borough-English  prevails  in  several 
cities  and  ancient  boroughs,  and  districts  adjoining  to  them  ;  the  tenure 
is  socage,  but,  according  to  the  custom,  the  estate  descends  to  the  youngest 
son  in  exclusion  of  all  the  other  children. (a)  The  custom  does  not  in 
general  extend  to  collateral  relations ;  but  by  special  custom  it  may,  so 
as  to  admit  the  youngest  brother,  instead  of  the  eldest.(a)  Estates,'  as 
well  in  tail  as  in  fee  simple,  descend  according  to  this  custom. (b) 

The  tenor  of  ancient  demesne  exists  in  those  manors,  and  in  those 
only,  which  belonged  to  the  crown  in  the  reigns  of  Edward  the  Confessor 
and  William  the  Conqueror,  and  in  Domesday  Book  are  denominated 
Terrce  llegis  JEdwardi,  or  Terr  re  Ilegis.(c)  The  tenants  are  free- 
holders, id)  and  possess  certain  ancient  immunities,  *the  chief  of  r*iQi-i 
which  is  a  right  to  sue  and  be  sued  only  in  their  lord's  court. 
Before  the  abolition  of  fines  and  recoveries,  these  proceedings,  being 
judicial  in  their  nature,  could  only  take  place,  as  to  lands  in  ancient 
demesne,  in  the  lord's  court ;  but,  as  the  nature  of  the  tenure  was  not 
always  known,  much  inconvenience  frequently  arose  from  the  proceedings 
being  taken  by  mistake  in  the  usual  Court  of  Common  Pleas  at  West- 
minster ;  and  these  mistakes  have  given  to  the  tenure  a  prominence  in 
practice  which  it  would  not  otherwise  have  possessed.  Such  mistakes, 
however,  have  been  corrected,  as  far  as  possible,  by  the  act  for  the  abo- 
lition of  fines  and  recoveries  ;{e)  and  for  the  future,  the  substitution  of  a 
simple  deed,  in  the  place  of  those  assurances,  renders  such  mistakes 
impossible.  So  that  this  peculiar  kind  of  socage  tenure  now  possesses 
but  little  practical  importance. 

(.r)  Kitchen  on  Courts  200  ;  Co.  Litt.  140  a. 
(>/)  See  Bac.  Abr.  tit.  Gavelkind  (13)  3. 
(z)  Litt.  s.  105;  2  Black.  Com.  83. 

(a)  Comyns's  Digest,  tit.  Borough-English  ;  Watk.  Descents  89  (94,  4th  ed.).  See 
Rider  v.  Wood,  1  Kay  &  Johns.  644. 

(b)  Rob.  Gav.  94  (120,  3d  ed.j.  (c)  2  Scriv.  Cop.  687. 

(d)  The  account  given  by  Blackstonc  of  this  tenure  as  altogether  copyhold  (2  Black. 
Com.  100)  appears  to  be  erroneous,  though  no  doubt  there  are  copyholds  of  some  of 
the  lands  of  such  manors.  3d  Rep.  of  Real  Property  Commissioners,  p.  13;  2  Scriv. 
Cop.  691. 

(c)  Stat.  3  &  4  Will.  IV.  c.  14,  ss.  4,  5,  6. 


131  OF    CORPOREAL    HEREDITAMENTS. 

So  much  then  for  the  tenure  of  free  and  common  socage,  with  its  inci- 
dents and  varieties.  There  is  yet  another  kind  of  ancient  tenure  still 
subsisting,  namely,  the  tenure  of  frankalmoign,  or  free  alms,  already 
mentioned,(/)  by  which  the  lands  of  the  church  are  for  the  most  part 
held.  This  tenure  is  expressly  excepted  from  the  statute  12  Car.  II.  c. 
24,  by  which  the  other  ancient  tenures  were  destroyed.  It  has  no  pecu- 
liar incidents,  the  tenants  not  being  bound  even  to  do  fealty  to  the  lords, 
because,  as  Littleton  says,(#)  the  prayers  and  other  divine  services  of  the 
tenants  are  better  for  the  lords  than  any  doing  of  fealty.  As  the  church 
is  a  body  having  perpetual  existence,  there  is  moreover  no  chance  of  any 
escheat.  This  tenure  is  therefore  a  very  near  practical  approach  to  that 
absolute  dominion  on  the  part  of  the  tenant,  which  yet  in  theory  the  law 
never  allows. 

(/)  Ante,  p.  39.  (g)  Litt.  s.  135  ;  Co.  Litt.  67  b. 


♦CHAPTER    VI.  [*1321 

OF   JOINT    TENANTS    AND    TENANTS    IN    COMMON. 

A  gift  of  lands  to  two  or  more  persons  in  joint  tenancy  is  such  a  gift 
as  imparts  to  them,  with  respect  to  all  other  persons  than  themselves   the 
properties  of  one  single  owner.     As  between  themselves,  they  must,  ot 
course,  have  separate  rights  ;  but  such  rights  are  equal  in  every  respect, 
it  not  being  possible  for  one  of  them  to  have  a  greater  interest  than  an- 
other in  the  subject  of  the  tenancy.      A  joint  tenancy  is  accordingly  said 
to  be  distinguished  by  unity  of  possession,  unity  of  interest   unity  ot  Mte 
and  unity  of  the  time  of  the  commencement  of  such  title.(a)     Any  estate 
may  be  held  in  joint  tenancy ;  thus,  if  lands  be  given  simply  to  A.  and 
B.  without  further  words,  they  will   become   at  once  joint  tenants  tor 
life  (6)     Being  regarded,  with  respect  to  other  persons,  as  but  one  indi- 
vidual, their  estates  will  necessarily  continue  so  long  as  the  longer  liver 
of  them  exists.     While  they  both  live,  as  they  must  have  several  rights 
between  themselves,  A.  will  be  entitled  to  one  moiety  of  the  rents  and 
profits  of  the  land,  and  B.  to  the  other;  but  after  the  decease  of  either 
of  them,  the  survivor  will  be  entitled  to  the  whole  during  the  residue  ot 
his  life.1     So,  if  lands  be  given  to  A.  and  B.,  and  the  heirs  of  their  two 

(a)  2  Black.  Com.  180. 

(6)  Litt.  s.  283  ;  Coin.  Dig.  tit.  Estates  (K  1)  ;  see  ante,  p.  IT. 


i  Tenure   by   joint   tenancy   was   mnch  (Rigden  v.  Vallier,  3  Atkins  735);  yet  it 

favor  dTn  the      d  law,  which  was  averse  has  been  so   construed  when  the  purchase 

rrdi^ion  of  tenures,  and   the  conse-  was  made  with  the  W«H^ 

nnent    multiplication    of   feudal    services,  sums    in    improving   the    land^   Lake    v. 

^  a  ^Srtacominonw- thereto™  Craddock,    3   P.   Wms.    158;    Duncan    v. 

I     e  cr  ated  by  deed,  the  words  usually  Forrer,   6  Binney  196  ;  Caines   v    Grant 

employed   were    «  to   hold   as    tenants   in  Lessee,  5  Binney  120  ;  Cuyler  v.  Bradt,  2 

common  and    not   as  joint   tenants."     In  Oain^c-..  32t , 
pmiitv     although    the    common   law    rule         btatutes  nave,  miwevci, 
equity,    aitnoug  abolished  the    distinguishing  fea- 

prevailed,  yet  there  was  a  strong  leaning  with,  however,  in  some  of  them,  certain 

St  such  a  tenure,  and  although  the  excepted  cases,  as  to  trustees  (see  mfra, 

meTc  r  umstance  of  two  or  more  having  p.  130,  n.  2),  husband  and  wife  partners 
equally  paid  the  purchase-money  would  &c.  For  a  particular  reference  to  these 
not  be  deemed  sufficient  to  render  the  statutes  see  2  Greenleaf  '.  Cruise  on  Real 
estate   a   tenancy    in    common   in   equity     Property  364. 


132  OF    CORPOREAL    HEREDITAMENTS. 

bodies  ;  here,  if  A.  and  B.  be  persons  who  may  possibly  intermarry,  they 
will  have  an  estate  in  special  tail,  descendible  only  to  the  heirs  of  their 
two  *bodies:(c)  so  long  as  they  both  live,  they  will  be  entitled 
*-  '^  to  the  rents  and  profits  in  equal  shares ;  after  the  decease  of 
either,  the  survivor  will  be  entitled  for  life  to  the  whole ;  and,  on  the 
decease  of  such  survivor,  the  heir  of  their  bodies,  in  case  they  should 
have  intermarried,  will  succeed  by  descent,  in  the  same  manner  as  if 
both  A.  and  B.  had  been  but  one  ancestor.  If,,  however,  A.  and  B.  be 
persons  who  cannot  at  any  time  lawfully  intermarry,  as,  if  they  be 
brother  and  sister,  or  both  males,  or  both  females,  a  gift  to  them  and  the 
heirs  of  their  two  bodies  will  receive  a  somewhat  different  construction. 
So  long  as  it  is  possible  for  a  unity  of  interest  to  continue,  the  law  will 
carry  it  into  effect:  A.  and  B.  will  accordingly  be  regarded  as  one 
person,  and  will  be  entitled  jointly  during  their  lives.  While  they  both 
live  their  rights  will  be  equal ;  and,  on  the  death  of  either,  the  survivor 
will  take  the  whole,  so  long  as  he  may  live.  But,  as  they  cannot  inter- 
marry, it  is  not  possible  that  any  one  person  should  be  heir  of  both  their 
bodies :  on  the  decease  of  the  survivor,  the  law,  therefore,  in  order  to 
conform  as  nearly  as  possible  to  the  manifest  intent,  that  the  heir  of  the 
body  of  each  of  them  should  inherit,  is  obliged  to  sever  the  tenancy,  and 
divide  the  inheritance  between  the  heir  of  the  body  of  A.  and  the  heir 
of  the  body  of  B.  Each  heir  will  accordingly  be  entitled  to  a  moiety  of 
the  rents  and  profits,  as  tenant  in  tail  of  such  moiety.  The  heirs  will 
now  hold  in  a  manner  denominated  tenancy  in  common  ;  instead  of  both 
having  the  whole,  each  will  have  an  undivided  half,  and  no  further  right 
of  survivorship  will  remain. (d) 

An  estate  in  fee  simple  may  also  be  given  to  two  or  more  persons  as 
joint  tenants.1  The  unity  of  this  kind  of  tenure  is  remarkably  shown 
r*i9iT  by  the  words  which  are  *made  use  of  to  create  a  joint  tenancy 
in  fee  simple.  The  lands  intended  to  be  given  to  joint  tenants 
in  fee  simple  are  limited  to  them  and  their  heirs,  or  to  them,  their  heirs 
and  assigns,{e)  although  the  heirs  of  one  of  them  only  will  succeed  to 
the  inheritance,  provided  the  joint  tenancy  be  allowed  to  continue : 
thus,  if  lands  be  given  to  A.,  B.,  and  C.  and  their  heirs,  A.,  B.,  and  C. 

(c)  Co.  Litt.  20  b,  25  b  ;  Bac.  Abr.  tit.  Joint  Tenants  (G). 

(d)  Litt.  s.  283.     See  Re  Tiverton  Market  Act,  20  Beav.  374. 
(<?)  Bac.  Abr.  tit.  Joint  Tenants  (A)  ;  Co.  Litt.  184  a. 

1  If  an  estate  in  fee  be  given  to  husband     not  properly  joint  tenants,  but  tenants  by 
and  wife,  during  the  marriage,   they  are     entireties.     See  ch.  xi.  post,  p.  226. 


OF   JOINT    TENANTS    AND    TENANTS    IN    COMMON. 


134 


will  together  be  regarded  as  one  person  ;  and  when  they  are  all  dead, 
but  not  before,  the  lands  will  descend  to  the  heirs  of  the  artificial  per- 
son (so  to  speak)  named  in  the  gift.  The  survivor  of  the  three, 
who  together  compose  the  tenant,  will,  after  the  decease  of  his  com- 
panions, become  entitled  to  the  whole  lands.(/)  While  they  all  lived 
each  had  the  whole ;  when  any  die,  the  survivors  or  survivor  can  have 
no  more.1  The  heir  of  the  survivor  is,  therefore,  the  person  who  alone 
will  be  entitled  to  inherit,  to  the  entire  exclusion  of  the  heirs  of  those 
who  may  have  previously  died.(^)  A  joint  tenancy  in  fee  simple  is  far 
more  usual  than  a  joint  tenancy  for  life  or  in  tail.  Its  principal  use  m 
practice  is  for  the  purpose  of  vesting  estates  in  trustees,(A)  who  are  in- 
variably made  joint  tenants.2  On  the  decease  of  one  of  them,  the 
whole  estate  then  vests  at  once  in  the  survivors  or  survivor  of  them, 
without  devolving  on  the  heir  at  law  of  the  deceased  trustee,  and  with- 
out being  affected  by  any  disposition  which  he  may  have  made  by  his 
will  ;  for  joint  tenants  are  incapable  of  devising  their  respective  shares 


(/)  Litt.  s.  2 


(g)  Litt.  ubi  sup. 


(h)  See  post,  the  chapter  on  Uses  and  Trusts. 


1  As  a  consequence  of  the  jus  accrescendi, 
all  charges  made  by  a  joint  tenant  deter- 
mine by  his  death,  and  do  not  affect  the 
survivor:  Litt.  §  286;  except  in  the  case 
of  a  lease  to  a  stranger  by  a  joint  tenant 
in  fee  :  Co.  Litt.  185  a  ;  that  being  an  im- 
mediate disposition  of  the  land.  Litt. 
\   289.  R- 

2  In  some  printed  forms  of  conveyances 
the  estate  is  conveyed  to  the  trustees, 
"  and  the  survivor  of  them  and  the  heirs 
and  assigns  of  such  survivor ;  but  it  is 
more  prudent  to  convoy  simply  to  the 
trustees,  "their  heirs  and  assigns,"  for,  in 
Vick  v.  Edwards,  3  P.  Vv'ms.  372,  Lord 
Talbot  considered  that  the  former  phrase 
created  a  joint  tenancy  for  life,  with  a 
contingent  remainder  to  the  survivor,  the 
fee  resulting  to  the  grantor,  or  heir  at  law 
in  case  of  a  devise,  until  the  happening 
of  the  contingency. 

In  case  the  contingent  remainder  were 
barred  by  a  fine  levied  by  the  trustees  in 
favor  of  a  purchaser,  the  title  would  still 
be  open  to  objection :  1  Preston's  Con- 
veyancing 301  ;  as  their  fine  might  be 
supposed  to  work  a  forfeiture  of  their  own 
estate,   and  a   consequent  destruction   of 


the  contingent  remainder  to  the  survivor, 
and  gave  to  the  heir,  therefore,  an  imme- 
diate right  of  entry  :  Butler's  Note  to  Co. 
Litt.  191,  a;  and  it  consequently  became 
the  practice  of  conveyancers  to  make  the 
heir  at  law  a  party  to  the  conveyance, 
though  Mr.  Fearne  considered  that  wher- 
ever there  was  a  joint  trust  to  sell,  the 
nature  of  the  trust  afforded  strong  ground 
for  construing  the  fee  to  pass  to  the  trus- 
tees absolutely.  Fearne's  Cont.  Rem.  357. 
The  Pennsylvania  statute  abolishing  survi- 
vorship in  joint  tenancy  contains  an  express 
reservation  as  to  trust  estates.  R. 

In  Pennsylvania,  provision  is  made  by 
statute  for  cases  where  there  are  several 
trustees  and  one  or  more  of  them  shall  die 
or  be  discharged;  all  the  title  and  au- 
thority which  they  all  had  vest  in  the  sur- 
vivor or  survivors.  And  so  where  a  trust 
becomes  vacant,  and  a  new  trustee  is  ap- 
pointed by  the  court  having  jurisdiction, 
all  the  trust  estate  forthwith  vests  in  the 
appointee  without  any  conveyance  being 
necessary.  Purd.  Dig.  Title  "Trustees," 
pp.  1419,  1426;  R.  R.  Co.  v.  Navigation 
Co.,  12  Casey  204.    'See post,  p.  173. 


184  OF    CORPOREAL    HEREDITAMENTS. 

by  will;(z)  they  are  not  regarded  as  having  any  separate  interests,  ex- 
cept as  between  or  amongst  themselves,  whilst  two  or  more  of  them 
are  living.  Trustees,  therefore,  whose  only  interest  is  that  of  the  per- 
sons for  whom  they  hold  in  trust,  are  properly  made  joint  tenants ;  and 
r*iqc-|  so  long  *as  any  one  of  them  is  living,  so  long  will  every  other 
person  be  excluded  from  the  legal  possession  of  the  lands  to 
which  the  trust  extends.  But  on  the  decease  of  the  surviving  trustee, 
the  lands  will  devolve  on  the  devisee  under  his  will,  or  on  his  heir  at 
law,1  who  will  remain  trustee  till  the  lands  are  conveyed  to  some  other 
trustee  duly  appointed. 

As  joint  tenants  together  compose  but  one  owner,  it  follows,  as  we 
have  already  observed,  that  the  estate  of  each  must  arise  at  the  same 
time:(k)  so  that  if  A.  and  B.  are  to  be  joint  tenants  of  lands,  A.  cannot 
take  his  share  first,  and  then  B.  come  in  after  him.  To  this  rule,  how- 
ever, an  exception  has  been  made  in  favor  of  conveyances  taking  effect 
by  virtue  of  the  Statute  of  Uses,  to  be  hereafter  explained ;  for  it  has 
been  held  that  joint  tenants  under  this  statute  may  take  their  shares  at 
different  times  ;(l)  and  the  exception  appears  also  to  extend  to  estates 
created  by  will.(w)  A  further  consequence  of  the  unity  of  joint  tenants 
is  seen  in  the  fact  that  if  one  of  them  should  wish  to  dispose  of  his  inte- 
rest in  favor  of  any  of  his  companions,  he  may  not  make  use  of  any  mode 
of  disposition  operating  merely  as  a  conveyance  of  lands  from  one 
stranger  to  another.  The  legal  possession  or  seisin  of  the  whole  of  the 
lands  belongs  to  each  one  of  the  joint  tenants  of  an  estate  of  freehold ; 
no  delivery  can,  therefore,  be  made  to  him  of  that  which  he  already  has. 
The  proper  form  of  assurance  between  joint  tenants  is,  accordingly,  a 
release  by  deed,(w)  and  this  release  operates  rather  as  an  extinguish- 
r*-io£-i  nient  *of  right  than  as  a  conveyance;  for  the  whole  estate  is 
already  supposed  to  be  vested  in  each  joint  tenant,  as  well  as  his 

(i)  Litt.  s.  287;  Perk.  s.  500. 

(k)  Co.  Litt.  188  a;  2  Black.  Com.  181. 

(I)  13  Rep.  56;  Pollexf.  373;  Bac.  Abr.  tit.  Joint  Tenants  (D) ;  Gilb.  Uses  and 
Trusts  71  (135,  n.  10,  3d  ed.). 

(m)  2  Jarman  on  Wills  161,  1st  ed. ;  209,  2d  ed. ;  235,  3d  ed.  ;  Oates  d.  Hatterley  v. 
Jackson,  2  Strange  1172  :  Fearne,  Cont.  Rem.  313  ;  Bridge  v.  Yates,  12  Sim  645  ;  Ken- 
worthy  v.  Ward,  11  Hare  196  ;  M'Gregor  v.  M'Gregor,  1  De  Gex,  F.  &  J.  73. 

(n)  Co.  Litt.  169  a  ;  Bac.  Abr.  tit.  Joint  Tenants  (I)  3  ;  2  Prest.  Abst.  61.  But  a 
grant  would  operate  as  a  release ;  Chester  v.  Willan,  2  Wms.  Saund.  96  a. 

1  Notwithstanding  the  statutory  law  of  trustee.  Jenks's  Lessee  v.  Backhouse,  1 
descents  in  Pennsylvania,  a  trust  still  de-  Binney  91 ;  Baird's  Appeal,  3  Watts  <s 
scends  to  the  heir  at  common  law  of  the     Serg.  459.  R. 


OF   JOINT   TENANTS    AND   TENANTS    IN    COMMON.  136 

own  proportion.1  And  in  the  Norman  French,  with  which  our  law 
abounds,  two  persons  holding  land  in  joint  tenancy  are  said  to  be  seised 
per  mie  et  per  tout.(of 

The  incidents  of  a  joint  tenancy,  above  referred  to,  last  only  so  long 
as  the  joint  tenancy  exists.  It  is  in  the  power  of  any  one  of  the  joint 
tenants  to  sever  the  tenancy ;  for  each  joint  tenant  possesses  an  abso- 
lute power  to  dispose,  in  his  lifetime,  of  his  own  share  of  the  lands,  by 
which  means  he  destroys  the  joint  tenancy. (p)  Thus,  if  there  be  three 
joint  tenants  of  lands  in  fee  simple,  any  one  of  them  may,  by  any  of  the 
usual  modes  of  alienation,  dispose  during  his  lifetime,  though  not  by  will, 
of  an  equal  undivided  third  part  of  the  whole  inheritance.  But  should 
he  die  without  having  made  such  disposition,  each  one  of  the  remaining 
two  will  have  a  similar  right  in  his  lifetime  to  dispose  of  an  undivided 
moiety  of  the  whole.  From  the  moment  of  severance,  the  unity  of 
interest  and  title  is  destroyed,  and  nothing  is  left  but  the  unity  of  posses- 
sion ;  the  share  which  has  been  disposed  of  is  at  once  discharged  from 
the  rights  and  incidents  of  joint  tenancy,  and  becomes  the  subject  of  a 
tenancy  in  common.  Thus,  if  there  be  three  joint  tenants,  and  any  one 
of  them  should  exercise  his  power  of  disposition  in  favor  of  a  stranger, 
such  stranger  will  then  hold  one  undivided  third  part  of  the  lands,  as 
tenant  in  common  with  the  remaining  two.3 

Tenants  in  common  are  such  as  have  a  unity  of  ""possession  r-^^  07-1 
but  a  distinct  and  several  title  to  their  shares. (q)  The  shares 
in  which  tenants  in  common  hold  are  by  no  means  necessarily  equal. 
Thus,  one  tenant  in  common  may  be  entitled  to  one-third  or  one-fifth, 
or  any  other  proportion  of  the  profits  of  the  land,  and  the  other  tenant 
or  tenants  in  common  to  the  residue.  So,  one  tenant  in  common  may 
have  but  a  life  or  other  limited  interest  in  his  share,  another  may  be 

(0)  Litt.  s.  288.  (p)  Co.  Litt.  186  a. 

(q)  Litt.  s.  292  ;  2  Black.  Com.  191. 

1  The  real  distinction  is,  joint  tenants  fore,  that  Blackstone  committed  an  error 
have  the  whole  for  the  purpose  of  tenure  (in  which  he  has  been  very  generally  fol- 
and  survivorship,  while,  for  the  purpose  lowed)  in  rendering  the  phrase  per  mie  et 
of  immediate  alienation,  each  has  only  a  per  tout,  by  the  half  or  moiety  and  by  the 
particular  part.  1  Preston  on  Estates  whole.  2  Blacks.  Com.  182.  M. 
136.                                                               R.             3  The   two   who   retained  their  original 

2  In  a  note  to  Murray  v.  Hall,  7  Mann,  joint  estates  would  remain,  as  to  each 
Gr.  and  Scott  455  (E.  C.  L.  R.  vol.  62),  it  other,  joint  tenants  of  their  shares.  Litt. 
is   said  that  the  proper  rendering  of  mie  \  294;  Co.  Litt.  189  .a. 

is  nothing  or  not  in  the  least ;   and,  there- 


137  OF    CORPOREAL    HEREDITAMENTS. 

seised  in  fee  of  his,  and  the  owners  of  another  undivided  share  may  be 
joint  tenants  as  between  themselves,  whilst  as  to  the  other  they  are 
tenants  in  common.  Between  a  joint  tenancy  and  tenancy  in  common, 
the  only  similarity  that  exists  is  therefore  the  unity  of  possession.  A 
tenant  in  common  is,  as  to  his  own  undivided  share,  precisely  in  the 
position  of  the  owner  of  an  entire  and  separate  estate. 

When  the  rights  of  parties  are  distinct,  that  is,  for  instance,  when 
they  are  not  all  trustees  for  one  and  the  same  purpose,  both  a  joint 
tenancy  and  a  tenancy  in  common  are  inconvenient  methods  for  the  en- 
joyment of  property.  Of  the  two  a  tenancy  in  common  is  no  doubt 
preferable ;  inasmuch  as  a  certain  possession  of  a  given  share  is  prefer- 
able to  a  similar  chance  of  getting  or  losing  the  whole,  according  as  the 
tenant  may  or  may  not  survive  his  companions.  But  the  enjoyment  of 
lands  in  severalty(r)  is  far  more  beneficial  than  either  of  the  above 
modes.  Accordingly  it  is  in  the  power  of  any  joint  tenant  or  tenant 
in  common  to  compel  his  companions  to  effect  a  partition  between  them- 
selves, according  to  the  value  of  their  shares.  This  partition  was 
formerly  enforced  by  a  writ  of  partition,  granted  by  virtue  of  statutes 
passed  in  the  reign  of  Henry  VIII. (s)  Before  this  reign,  as  joint 
r*1  nsi  tenants  ancl  tenants  in  *common  always  became  such  by  their  own 
act  and  agreement,  they  were  without  any  remedy,  unless  they  all 
agreed  to  the  partition  ;  whereas  we  have  seen(£)  that  co-parceners,  who 
become  entitled  by  act  of  law,  could  always  compel  partition.  In  modern 
times,  the  Court  of  Chancery  was  found  to  be  the  most  convenient 
instrument  for  compelling  the  partition  of  estates  ;(w)  and  by  a  modern 
statute, (a;)  the  old  writ  of  partition,  which  had  already  become  obsolete, 
was  abolished.  The  Supreme  Court  of  Judicature  Act,  1878, (y)  has 
transferred  this  jurisdiction  to  the  High  Court  of  Justice  thereby  estab- 
lished. Whether  the  partition  be  effected  through  the  agency  of  the 
court,  or  by  the  mere  private  agreement  of  the  parties,  mutual  convey- 
ances of  their  respective  undivided  shares  must  be  made,  in  order  to 
carry  the  partition  into  complete  effect. (z)  With  respect  to  joint  tenants, 
these  conveyances  ought,  as  we  have  seen,  to  be  in  the  form  of  releases ; 

(r)  Ante,  p.  104.  («)  31  Hen.  VIII.  c.  I ;   32  Hen.  VIII.  c.  32. 

|      Ante,  p.  103. 

(u)  See  Manners  v.  Charlesworth,  1  Mylne  &  Keen  330. 
(x)  Stat.  3  &  4  Will.  IV.  c.  27,  s.  36. 

(?/)  Stat.  36  &  37  Vict.  c.  66,  ss.  16,  17.     By  stat.  37  &  38  Vict.  c.  83,  the  commence- 
ment of  this  act  was  postponed  to  the  1st  of  November,  1875. 
(z)  Attorney-General  v.  Hamilton,  1  Madd.  214. 


OF   JOINT   TENANTS   AND    TENANTS    IN    COMMON.  138 

but  tenants  in  common,  having  separate  titles,  must  make  mutual  con- 
veyances, as  between  strangers ;  and  by  a  modern  statute  it  is  provided 
that  a  partition  shall  be  void  at  law  unless  made  by  deed. (a)  If  any  of 
the  parties  entitled  should  be  infants  under  age,  lunatic,  or  of  unsound 
mind,  and  consequently  unable  to  execute  a  conveyance,  the  court  has 
power  to  carry  out  its  own  decree  for  a  partition  by  making  an  order, 
which  will  vest  their  shares  in  such  persons  as  the  court  shall  direct.(J)1 
Another  very  convenient  mode  of  effecting  a  partition  is,  by  application 
to  the  Enclosure  commissioners  for  England  and  Wales,  who  r*-|oq-i 
are  empowered  by  recent  acts  of  parliament  to  make  orders 
under  their  hands  and  seal  for  the  partition  and  exchange  of  lands  and 
other  hereditaments,  which  orders  are  effectual  without  any  further  con- 
veyance or  release.(c) 

An  act  has  now  passed  to  amend  the  law  relating  to  partition. (d)  By 
this  act  the  Court  of  Chancery  was  empowered  to  direct  a  sale  of  the 
property  instead  of  a  partition,  whenever  a  sale  and  distribution  of  the 
proceeds  appeared  to  the  court  to  be  more  beneficial  to  the  parties  inter- 
ested, (e)  The  jurisdiction  of  the  Court  of  Chancery,  in  all  these 
matters,  is  now  transferred  to  the  High  Court  of  Justice,(/)  as  from 
the  1st  of  November,  1875. (g)  If  the  parties  interested  to  the  extent 
of  a  moiety  or  upwards  request  a  sale,  the  Court  shall,  unless  it  sees 
good  reason  to  the  contrary,  direct  a  sale  of  the  property  accordingly. (A) 
And  if  any  party  interested  requests  a  sale,  the  Court  may,  if  it  thinks 
fit,  unless  the  other  parties  interested  or  some  of  them  undertake  to 
purchase  the  share  of  the  party  requesting  a  sale,  direct  a  sale  of  the 
property. (i)  This  alteration  of  the  law,  which  was  some  time  since 
suggested  by  the  author,(&)  has,  in  his  humble  judgment,  effected  a  sub- 
stantial improvement. 

(a)  Stat.  8  &  9  Vict.  c.  106,  s.  3,  repealing  stat.  7  &  8  Vict.  c.  76,  s.  3,  to  the  same 
effect. 

(b)  Stat.  13  &  14  Vict.  c.  60,  ss.  3,  7,  30. 

(c)  Stats.  8  &  9  Vict.  c.  118,  ss.  147,  150  ;  9  &  10  Vict.  c.  70,  ss.  9,  10,  11  ;  10  &  11  Vict, 
c.  Ill,  ss.  4,  6  ;  11  &  12  Vict.  c.  99,  s.  13  ;  12  &  13  Vict.  c.  83,  ss.  7,  11  ;  15  &  16  Vict.  c. 
79,  ss.  31.  32  ;  17  &  18  Vict.  c.  97,  s.  5  ;  20  &  21  Vict.  c.  31,  ss.  1-11  ;  21  &  22  Vict.  c. 
53;  22  &  23  Vict.  c.  43,  ss.  10,  11  ;  39  &  40  Vict.  c.  56,  s.  33. 

(d)  Stat.  31  &  32  Vict.  c.  40,  amended  by  Stat.  39  &  40  Vict.  c.  17. 

(e)  Sect.  3.  (/)   Stat.  36  &  37  Vict.  c.  66,  s.  16. 
(ff)   Stat.  37  &  38  Vict.  c.  83. 

(A)  Sect.  4;  Wilkinson  v.  Joberns,  L.  R.  16,  Eq.  14. 
(?)  Sect.  5.     See  Williams  v.  Gaines,  L.  R.  10  Ch.  204. 
(A-)  Essay  on  Real  Assets,  p.  129. 

1  See  ante,  p.  103,  n.  1. 


[*140]  CHAPTER   VII. 

OF    A    FEOFFMENT. 

Having  now  considered  the  most  usual  freehold  estates  which  are 
holden  in  lands,  and  the  varieties  of  holding  arising  from  joint  tenancies 
and  tenancies  in  common,  we  proceed  to  the  means  to  be  employed  for 
the  transfer  of  these  estates  from  one  person  to  another.  And  here  we 
must  premise  that,  by  enactments  of  the  present  reign, (a)  the  conveyance 
of  estates  has  been  rendered,  for  the  future,  a  matter  independent  of 
that  historical  learning  which  was  formerly  necessary.  But,  as  the  means 
formerly  necessary  for  the  conveyance  of  freeholds  depend  on  principles 
which  still  continue  to  exert  their  influence  throughout  the  whole  system 
of  real  property  law,  these  means  of  conveyance  and  their  principles  must 
vet  continue  objects  of  the  early  attention  of  every  student;  of  these 
means  the  most  ancient  is  a  feoffment  with  livery  of  seisin,(b)  which 
accordingly  forms  the  subject  of  our  present  chapter. 

The  feudal  doctrine  explained  in  the  fifth  chapter,  that  all  estates  in 
land  are  holden  of  some  lord,  necessarily  implies  that  all  lands  must 
always  have  some  feudal  holder  or  tenant.  This  feudal  tenant  is  the  free- 
holder, or  holder  of  the  freehold  ;  he  has  the  feudal  possession,  called  the 
seisin,(c)1  and  so  long  as  he  is  seised,  nobody  else  can  be.  The  freehold 
is  said  to  be  in  him,  and  till  it  is  taken  out  of  him  and  given  to  some 
r*1-in  °*ner5  *tne  land  itself  is  regarded  as  in  his  custody  or  possession. 
Now  this  legal  possession  of  lands — this  seisin  of  the  freehold — 
is  a  matter  of  great  importance,  and  much  formerly  depended  upon  its 
proper  transfer  from  one  person  to   another  ;2  thus  we  have  seen  that, 

(a)  Stat.  8  &  9  Vict.  c.  10G,  repealing  stat.  7  &  8  Vict.  c.  76. 

(b)  2  Black.  Com.  310. 

(c)  Co.  Litt.  153  a  ;  Watkins  on  Descents  108  (113,  4th  ed.). 

1  Which  denoted  the  completion  of  that  this  delivery,  no  estate  of  freehold  could 
investiture  bj  which  the  tenant  was  ad-  be  constituted  or  pass,  with  the  single  ex- 
mitted  into  the  tenure.  II.         ception  of  the  case  of  a  fine,  which  was  a 

2  The  delivery  of  this  possession — the  judicial  acknowledgment,  in  a  feigned 
■  livtry  of  seisin" — was  the  essential  part     action,  by  the  person  in  possession,  that 

of  a  feudal  transfer,  and  the  deed  which  in  the  right  was  in  another.  The  fine,  how- 
later  times  accompanied  it,  was  the  mere  ever,  always  implied  a  prior  feoffment.  R. 
authentication  of  the  transaction.  Without 


OF   A   FEOFFMENT.  141 

before  the  act  for  the  amendment  of  the  law  of  inheritance,  seisin  must 
have  been  acquired  by  every  heir  before  he  could  himself  become  the 
stock   of  descent.(d)     The  transfer  or  delivery  of  the  seisin,  though  it 
accompanies  the  transfer  of  the  estate  of  the  holder  of  the  seisin,  is  yet 
not  the  same  thing  as  the  transfer  of  his  estate.     For  a  tenant  merely  for 
life  is  as  much  a  feudal  holder,  and  consequently  as  much  in  possession, 
or  seised,  of  the  freehold,  as  a  tenant  in  fee  simple  can  be.     If,  there- 
fore, a  person  seised  of  an  estate  in  fee  simple  were  to  grant  a  lease  to 
another  for  his  life,  the  lessee  must  necessarily  have  the  whole  seisin 
given  up  to  him,  although  he  would  not  acquire  the  whole  estate  of  his 
lessor;  for  an  estate  for  life  is  manifestly  a  less  estate  than  an  estate  in 
fee  simple.     In  ancient  times,  however,  possession  was  the  great  point, 
and,  until  the  enactments  above  referred  to,(e)  the  conveyance  of  an  es- 
tate of  freehold  was  of  quite  a  distinct  character  from  such  assurances  as 
were  made  use  of  when  it  was  not  intended  to  affect  the  freehold  or 
feudal  possession.     For  instance,  we  have  seen  that  a  tenant  for  a  term 
of  years  is  regarded  in  law  as  having  merely  a  chattel  interest ;(/)  he 
has  not  the  feudal  possession  or  freehold  in   himself,  but  his  possession, 
like  that  of  a  bailiff  or  servant,  is  the  possession  of  his  landlord.     The 
consequence  is,  that  any  expressions  in  a  deed,  from  which  an  intention 
can  be  gathered  to  grant  the  occupation  of  land  for  a  certain  time,  have 
always   been    sufficient   for    a    lease    for    a    term    of   years    however 
*long  ;(</)  but  a  lease  for  a  single  life,  which  transfers  the  free-    p^oi 
hold,  formerly  required  technical  language  to  give  it  effect. 

A  feoffment  with  livery  of  seisin  was  then  nothing  more  than  a  gift 
of  an  estate  in  the  land  with  livery,  that  is,  delivery  of  the  seisin  or 
feudal  possession  :(h)  this  livery  of  seisin  was  said  to  be  of  two  kinds,  a 
livery  in  deed  and  a  livery  in  law.  Livery  in  deed  was  performed  "  by 
delivery  of  the  ring  or  haspe  of  the  doore,  or  by  a  branch  or  twigge  of  a 
tree,  or  by  a  turfe  of  land,  and  with  these  or  the  like  words,  the  feoffor 
and  feoffee,  both  holding  the  deed  of  feoffment  and  the  ring  of  the  doore, 
haspe,  branch,  twigge,  or  turfe,  and  the  feoffor  saying,  '  Here  I  deliver 
you  seisin  and  possession  of  this  house,  in  the  name  of  all  the  lands  and 
tenements  contained  in  this  deed  according  to  the  forme  and  effect  of  this 
deed,'  or  by  words  without  any  ceremony  or  act,  as,  the  feoffor  being  at 

(d)  Ante,  pp.  100,  101. 

(e)  Stat.  8  &  9  Vict.  c.  106,  repealing  stat.  7  &  8  Vict.  c.  76. 

(f)  Ante,  p.  8. 

(c/)  Bac.  Abr.  tit.  Leases  and  Terras  for  years  (K).   - 
(h)  Co.  Litt.  271  b,  n.  (1). 


142  01    CORPOREAL    HEREDITAMENTS. 

tbe  boa  e  doore,  or  within   the  hoc  e,  'Here  I  deliver  you  Beisiti  and 

ion  of  thi     bon  le,  in  the  name  of  seisin  and  possession  of  all  the 
!,,,,,!    .in,|  tenenenta  contained  in  this  deed.'"(«)     The  feoffee  then,  if  it 

a  i -,  entered  alone,    bul  the  door,  then  opened  it,  and  let  in  the 

,,,1,,.,  .,/ )  [n  performing  thie  ceremony,  it  was  requisite  thai  all  persons 
ssl,,,  had  anj  i  tate  or  posse  sion  in  the  bouse  or  land,  of  which  seisin 
,A,  delivered,  bould  either  join  in  or  consent  to  making  the  livery,  or 
,„.  .,,,  ,  nt  from  the  premises;  for  the  object  was  to  give  the  entire  and 
un(Ii  )illl(,|  ,„,,,„,„  to  the  feoffee.(Z)  [f  the  feoffment  was  made  of 
differenl  lands  lying  scattered  in  one  'and  the  same  county,  livery 
I  '  '  '"'  of  Beisin  of  any  parcel,  in  the  name  of  the  rest,  was  sufficient  for 
:|  1 1 ,  if  all  were  in  the  complete  possession  of  the  same  feoffor;  hut  if  they 
were  in  several  counties  there  musl  bave  been  as  many  liveries  as  there 
were  counties.(Tn)  For  if  the  title  to  these  lands  should  come  to  be  dis- 
puted,  there  musl  bave  been  as  many  trials  as  there  were  counties;  and 
ilH.  j„,  s  of  one  county  are  nol  considered  judges  of  the  notoriety  of  a 
pa0l  m  ftnother.(w)  Livery  in  ifawwasnol  madeow  the  land,  but  insight 
„,,y  ,„,Iy,  the  feoffor  Baying  to  the  feoffee,  "1  give  you  yonder  land, 
enter  and  take  possession."     tf  the  feoffee  entered  accordingly  in  the 

lifetime  of  the  feoffor,  this  was  a  g I  feoffment;  but  if  either  the  feoffor 

or  Feoffee  died  before  entry,  the  livery  was  void.(o)  This  livery  was 
g i,  although  the  land  lay  in  another  county  ;(  p)  but  it  required  always 

I,,  be  made  helween  the  parties  theni>el\  6S,  and  Could  not  he  deputed  to 
an  attorney,  as  might  livery  in  deed.iy!      The  word  give  was  the  apt  and 

teohnioal  term  to  be  employed  in  a  feoffment  ;(r)  its  use  arose  in  those 
times  when  gifts  from  feudal  lords  to  their  tenants  were  the  conveyances 
principally  employed. 

In  addition  to  the  livery  of  seisin,  it  was  also  necessary  that  the  estate 

whioh  the  feoffee  was  to  take  should  be  marked  out,  whether  for  his  own 

life  or  for  thai  of  another  person,  or  in  tail,  or  in  fee  simple,  or  other- 

,  ,  ,  ,    wise.    This  marking  out  o\'  the  estate  is  as  necessary  now  as  "  for- 

merly,  and  it  is  called  limiting  the  estate.      If  the  feudal  holding 

(i)  Co   i 

B  u  k.  Com.  816  .  i  Sand.  Cs< 
Shep.  Touch.  213;  Doe  d.  Reed  \.  Taylor,  5  Barn.  &  Adol.  575  (E.  C.  L.  K.  vol.  27). 
But  si  manor,  the  site  of  which  extended  into  two  counties,  appears 
been  an  exception  to  iliis  rule;  lor  it  was  but  as  one  thing  for  the  purpose  of  a 
fooRWm  :  Perkins,  sect.  22T.    See,  however,  Halo's  Ms.,  Co.  l.itt.  50  a,  n 

0  a,   .  Black.  Com.  315,  Co.  l.itt.  4S  t> :  -J  Black.  Com.  316. 

Co   LIU.  ii  b,  Co.  l.itt.  52  b. 

Co.  Litl  .  k.  Com.  310. 


OF    A    FEOFFMENT.  144 

is  transferred,  the  estate  must  necessarily  be  an  estate  of  freehold  ;  it 
cannot  be  an  estate  at  will,  or  for  a  fixed  term  of  years  merely.  Thus 
the  land  may  be  given  to  the  feoffee  to  hold  to  himself  simply;  and  the 
estate  so  limited  is,  as  we  have  seen,(s)  but  an  estate  for  his  life,(£)  and 
the  feoffee  is  then  generally  called  a  lessee  for  his  life  ;  though  when  a 
mere  life  interest  is  intended  to  be  limited,  the  land  is  usually  expressly 
given  to  hold  to  the  lessee  "  during  the  term  of  his  natural  life."(w)  If 
the  land  be  given  to  the  feoffee  and  the  heirs  of  his  body,  he  has  an  estate 
tail,  and  is  called  a  donee  in  tail.(z)  And  in  order  to  confer  an  estate 
tail,  it  is  necessary  (except  in  a  will,  where  greater  indulgence  is  allowed) 
that  words  of  procreation,  such  as  heirs  of  his  body,  should  be  made  use 
of;  for  a  gift  of  lands  to  a  man  and  his  heirs  male  is  an  estate  in  fee 
simple,  and  not  in  fee  tail,  there  being  no  words  of  procreation  to  ascer- 
tain the  body  out  of  which  they  shall  issue ;(y)  and  an  estate  in  lands 
descendible  to  collateral  male  heirs  only,  in  entire  exclusion  of  females, 
is  unknown  to  the  English  law. (z)  If  the  land  be  given  to  hold  to  the 
feoffee  and  his  heirs,  he  has  an  estate  in  fee  simple,  the  largest  estate 
which  the  law  allows.  In  every  conveyance  (except  by  will)  of  an  estate 
of  inheritance,  whether  in  fee  tail  or  in  fee  simple,  the  word  heirs  is 
necessary  to  be  used  as  a  word  of  limitation  to  mark  out  the  estate. 
Thus  if  a  grant  be  made  to  a  man  and  his  seed,  or  to  a  man  and  his  off- 
spring, or  to  a  man  and  the  issue  of  his  body,  all  *these  are  insuffi-  r*-\AP.-\ 
cient  to  confer  an  estate  tail,  and  only  give  an  estate  for  life  for 
want  of  the  word  heirs  ;{a)  so  if  a  man  purchase  lands  to  have  and  to 
hold  to  him  for  ever,  or  to  him  and  his  assigns  for  ever,  he  will  have  but 
an  estate  for  his  life,  and  not  a  fee  simple. (6)1  Before  alienation  was 
permitted,  the  heirs  of  the  tenant  were  the  only  persons,  besides  himself, 
who  could  enjoy  the  estate ;  and  if  they  were  not  mentioned,  the  tenant 

(s)  Ante,  p.  19.  (t)  Litt.  s.  1;  Co.  Litt.  42  a. 

(«)  Ante,  p.  23.  (x)  Litt.  s.  57  ;  ante,  p.  36. 

(y)  Litt.  s.  31  ;  Co.  Litt.  27  a ;  2  Black.  Com.  115  ;  Doe  d.  Brune  v.  Martyn,  8  Barn. 
&  Cress.  497  (E.  C.  L.  R.  vol.  15). 

(z)  But  a  grant  of  arms  made  by  the  crown  to  a  man  and  his  heirs  male,  without  say- 
ing "  of  the  body,"  is  good,  and  they  will  descend  to  his  heirs  male,  lineal  or  collateral. 
Co.  Litt.  27  a. 

(a)  Co.  Litt,  20  b;  2  Black.  Com.  115.         (b)  Litt.  s.  1  ;  Co.  Litt.  20  a. 

1  Thus,  in   Pennsylvania,  a   conveyance  provided  by  statute  that  every  deed  shall 

to  three  Indian  Chiefs  "and  their  genera-  pass  to  the  grantee  all  the  grantor's  estate 

tion,  to  endure  as  long   as  the  waters  of  in  the  premises,  unless  an  intent  to  create 

the  Delaware  shall  run,"  was  held  to  pass  a  less  estate  appear.     See  2  Greenl.  Cruise 

but  a  life  estate.     Foster  v.  Joice,  3  W.  C.  354,  and  ante,  page  19,  note.  R. 

C.  R.  498.     In  some  States,  however,  it  is 


145  OF    CORPOREAL    HEREDITAMENTS. 

could  not  hold  longer  than  for  his  own  life  ;(e)  hence  the  necessity  of  the 
word  heirs  to  create  an  estate  in  fee  tail  or  fee  simple.  At  the  present 
day,  the  free  transfer  of  estates  in  fee  simple  is  universally  allowed;  but 
thiV  liberty,  as  we  have  seen,(<2)  is  now  given  by  the  law,  and  not  by  the 
particular  words  by  which  an  estate  may  happen  to  be  created.  So  that, 
though  conveyances  of  estates  in  fee  simple  are  usually  made  to  hold  to 
the  purchaser,  his  heirs  and  assigns  for  ever,  yet  the  word  heirs  alone 
gives  him  a  fee  simple,  of  which  the  law  enables  him  to  dispose  ;  and  the 
remaining  words,  and  assigns  for  ever,  have  at  the  present  day  no  con- 
veyancing virtue  at  all,  but  are  merely  declaratory  of  that  power  of 
alienation  which  the  purchaser  would  possess  without  them. 

The  formal  delivery  of  the  seisin  or  feudal  possession,  which  always 
took  place  in  a  feoffment,  rendered  it,  till  recently,  an  assurance  of 
great  power ;  so  that,  if  a  person  should  have  made  a  feoffment  to  an- 
other of  an  estate  in  fee  simple,  or  of  any  other  estate,  not  warranted 
by  his  own  interest  in  the  lands,  such  a  feoffment  would  have  oper- 
ated by  zvrong,  as  it  is  said,  and  would  have  conferred  on  the  feoffee 
the  whole  estate  limited  by  the  feoffment  along  with  the  seisin  ac- 
r*14fi1  tually  delivered.  Thus  if  a  tenant  for  his  own  life  *should 
L  -*  have  made  a  feoffment  of  the  lands  for  an  estate  in  fee 
simple,  the  feoffee  would  not  merely  have  acquired  an  estate  for  the 
life  of  the  feoffor,  but  would  have  become  seised  of  an  estate  in  fee 
simple  by  wrong  ;  accordingly,  such  a  feoffment  by  a  tenant  for  life  was 
regarded  as  a  cause  of  forfeiture  to  the  person  entitled  in  reversion  ;  such 
a  feoffment  being  in  fact  a  conveyance  of  his  reversion,  without  his  con- 
sent, to  another  person.  In  the  same  manner,  feoffments  made  by  idiots 
and  lunatics  appear  to  have  been  only  voidable  and  not  absolutely  void  ;(<?) 
whereas  their  conveyance  made  by  any  other  means  is  void  in  toto  ;  for, 
if  the  seisin  was  actually  delivered  to  a  person,  though  by  a  lunatic  or 
idiot,  the  accompanying  estate  must  necessarily  have  passed  to  him,  until 
he  should  have  been  deprived  of  it.  Again,  the  formal  delivery  of  the 
seisin  in  a  feoffment  appears  to  be  the  ground  of  the  validity  of  such  a 
conveyance  of  gavelkind  lands,  by  an  infant  of  the  age  of  fifteen 
years ;.(/)  although  a  conveyance  of  the  same  lands  by  the  infant, 
made  by  any  other  means,  would  be  voidable  by  him,  on  attaining  his 
majority. (g)  By  the  act  to  amend  the  law  of  real  property,(A)  it  is, 
however,  now  provided   that  a  feoffment  shall  not  have  any  tortious 

(c)  Ante,  pp.  17,  18.  (d)  Ante,  p.  42. 

(e)  Ante,  p.  66.  (/)  Ante,  p.  129. 

(ff)  Ante,  p.  66.  {k)  Stat.  8  k  9  Yict.  c.  106,  s.  4. 


OF    A    FEOFFMENT. 


146 


operation  ;  but  a  feoffment  made  under  a  custom  by  an  infant  is  expressly 
recognized,  (i) 

Down  to  the  time  of  King  Henry  VIII.  nothing  more  was  requisite 
to  a  valid  feoffment  than  has  been  already  mentioned.  In  the  reign  of 
this  king,  however,  an  act  of  parliament  of  great  importance  was  passed, 
known  by  the  name  of  the  Statute  of  Uses.(fc)  And  since  this  statute, 
it  has  now  become  further  requisite  to  a  feoffment,  either  that  there 
should  be  a  consideration  for  the  gift,  or  that  it  should  be  expressed 
*to  be  made,  not  simply  unto,  but  unto  to  and  to  the  use  of,  the  r^^-j 
feoffee.  The  manner  in  which  this  result  has  been  brought  about 
by  the  Statute  of  Uses  will  be  explained  in  the  next  chapter. 

If  proper  words  of  gift  were  used  in  the  feoffment,  and  witnesses  were 
present  who  could  afterwards  prove  them,  it  mattered  not,  in  ancient 
times,  whether  or  not  they  were  put  into  writing  ;(Z)  though  writing, 
from  its  greater  certainty,  was  generally  employed.(m)  There  was  this 
difference,  however,  between  writing  in  those  days  and  writing  in  our 
own  times:  in  our  own  times,  almost  everybody  can  write;  in  those 
days  very  few  of  the  landed  gentry  of  the  country  were  so  learned  as 
to  be  able  to  sign  their  own  names,  (n)  Accordingly,  on  every  import- 
ant occasion,  when  a  written  document  was  required,  instead  of  signing 
their  names,  they  affixed  their  seals  ;  and  this  writing,  thus  sealed,  was 
delivered  to  the  party  for  whose  benefit  it  was  intended.  Writing  was 
not  then  employed  for  every  trivial  purpose,  but  was  a  matter  of  some 
solemnity;  accordingly,  it  became  a  rule  of  law  that  every  writing 
under  seal  imported  a  consideration  :(o)— that  is,  that  a  step  so  solemn 
could  not  have  been  taken  without  some  sufficient  ground.  This  custom 
of  sealing  remained  after  the  occasion  for  it  had  passed  away,  and  writing 
had  been  generally  introduced;  so  that,  in  all  legal  transactions,  a  seal 
was  affixed  to  the  written  document,  and  the  writing  so  sealed  was,  when 
delivered,  called  a  deed,  in  Latin  factum,  a  thing  done ;  and,  for  a  long 
time   after   writing   had   come   into    common    use,    a   written    instru- 

(i)  Sect.  3. 

(k)  Stat.  27  Her..  VIII.  c.  10. 

(I)  Bracton,  lib.  2,  fol.  11  b,  par.  3,  33  b,  par.  1  ;   Co.  Litt,  48  b,  121  b,  143  a,  271  b, 

n.  (1). 

(wj)  Madox's  Form.  Angl.  Dissert,  p.  1. 

(n)  3  Hallam's  Middle  Ages  329  ;  2  Black.  Com.  305,  306. 

[o)  Plowden  308  ;  3  Burrow  1639  ;  1  Fonblanque  on  Equity  342  ;  2  Fonb.  Eq.  26. 


148  OF    CORPOREAL    HEREDITAMENTS. 

r*u8i  ment' if  *unsealed' had  in  law  no  suPeriority over  mere  wor(ls  >(p) 

*-  nothing  was  in  fact  called  a  wn'£m#,  but  a  document  under  seal  ;(q) 

and  at  the  present  day  a  deed,  or  a  writing  sealed  and  delivered,(r)  still 
imports  a  consideration,  and  maintains  in  many  respects  a  superiority 
in  law  over  a  mere  unsealed  writing.  In  modern  practice  the  kind  of 
seal  made  use  of  is  not  regarded,1  and  the  mere  placing  of  the  finger 
on  a  seal  already  made  is  held  to  be  equivalent  to  sealing  ;(*)  and  the 
words  "  I  deliver  this  as  my  act  and  deed,"  which  are  spoken  at  the  same 
time,  are  held  to  be  equivalent  to  delivery,  even  if  the  party  keep  the  deed 
himself.(^)2  The  sealing  and  delivery  of  a  deed  are  termed  the  execution  of 
it.  Occasionally  a  deed  is  delivered  to  a  third  person  not  a  party  to  it,  to 
be  delivered  up  to  the  other  party  or  parties,  upon  the  performance  of  a 
condition,  as  the  payment  of  money  or  the  like.  It  is  then  said  to  be 
delivered  as  an  escrow  or  mere  writing  (scriptum) ;  for  it  is  not  a  perfect 
deed  until  delivered  up  on  the  performance  of  the  condition  ;  but  when  so 
delivered  up,  it  operates  from  the  time  of  its  execution. (uf     Any  altera- 

(p)  See  Litt.  ss.  250,  252  ;  Co.  Litt.  9  a,  49  a,  121  b,  143  a,  169  a  ;  Rann  v.  Hughes,  7 
T.  Rep.  350,  n. 

(q)  See  Litt.  ss.  365,  366,  367  ;  Shep.  Touch,  by  Preston,  320,  321  ;  Sugden's  Ven.  & 
Pur.  126,  11th  ed. 

(r)  Co.  Litt.  171  b;  Shep.  Touch.  50.  (s)  Shep.  Touch.  57. 

(t)  Doe  d.  Garnons  v.  Knight,  5  Barn.  &  Cress.  671  (E.  C.  L.  R.  vol.  11) ;  Grugeon 
v.  Gerrard,  4  You.  &  Coll.  119,  130  ;  Exton  v.  Scott,  6  Sim.  31  ;  Fletcher  v.  Fletcher,  4 
Hare  67.     See  also  Hall  v.  Bainbridge,  12  Q.  B.  699  (E.  C.  L.  R.  vol.  64). 

(u)  See  Shep.  Touch.  57,  59  ;  Bowker  v.  Burdekin,  11  Mees.  &  Wels.  128,  147  ;  Nash 
v.  Flyn,  1  Jones  &  Lat.  162  ;  Graham  v.  Graham,  1  Ves.jun.  275;  Millership  v.  Brookes, 
5  II.  &  N.  797  ;  Watkins  v.  Nash,  L.  R.  20,  Eq.  262. 

1  In    all    of  the    United   States,   an   ink  affixed.     Chelton  v.  People,    66    111.    501  ; 

scroll,  written  or  printed,  is  considered  a  Taylor  v.  Glaser,   2  Serg.  &  Raw.  502.     In 

valid  seal,  except  in  Maine,  New   Hamp-  a  recent  case  in  Pennsylvania,  the  Court 

shire,  Vermont,  Rhode  Island,  Massachu-  allowed  a  conveyance  by  county  officers, 

Betts,  New  York,  and  Colorado.     In  a  few  which  had  been  delivered  without  seals, 

States  the  use  of  seals  (except  official  and  to  be  sealed  at  the  time  of  trial.     Watson 

corporate    seals)    has    been    abolished  by  v.  Jones,  4  Norris  117. 

Statute.     In  California  there  is  no  distinc-         2  This  is  perhaps  a  little  broadly  stated. 

tiou   recognized  between   sealed  and  un-  If  the  deed  has   ever  been  once  delivered, 

sealed  writings  (see  California  Civil  Code,  the  retention  with  the  party  in  its  posses- 

$  1629) ;  but    the   fact   that  a  contract  is  sion  is  an  immaterial  fact  ;  but  upon  the 

in   writing  imports  a  consideration,  id.  \  question  whether  there  has   ever    been  a 

1674.    In  all  the  States,  except  Rhode  Isl-  delivery,  the  possession  of  the  instrument 

and,  the  impression  of  an  official  seal  upon  may  have  a  material    bearing.     The  law 

the  paper  or  parchment  is  sufficient.    The  as  to  this  is  attempted  to  be  explained  in 

ordinary  conclusion  of  a  deed,  which  de-  Rawle's  edition  of  Smith  on  Contracts,  p. 

clares  that  the  parties  have  thereunto  set  60,  n.  R. 

their  hands  and  seals,  will  not  supply  the        3  For  the  American  cases  on  the  deliv- 

want  of  a  seal,  if  there  be  none  actually  ery  of  deeds  and  escrows,  see  Smith  on 


OF    A   FEOFFMENT. 


148 


tion  or  rasure  in,  or  addition  to,  a  deed  is  presumed  to  have  been  made 
before  its  execution.^)'     And  it  was  formerly  held  that  any  a  terafon, 
rasure  or  addition  "made  in  a  material  part  of  a  deed  afte.  i       [n49] 
execution  by  the  grantor,  even  though  made  by  a  stranger,  will 
reuTe    it  vld ;  and  that  any  alteration  iu  a  deed  made  by  the  party  to 
whom  i  J«B  delivered,  though  in  words  not  materia  ,  would  also  render 
f  voTdi*)     But  a  more  reasonable  doctrine  has  lately  prevailed ;  and  it 
has  now  been  held  that  the  filling  in  of  the  date  of  the  deed,  or        the 
names  of  the  occupiers  of  the  lands  conveyed,  or  any  such  add,  ton,  .f 
oT'stent  with  the' purposes  of  the  deed,  will  not  render  ,t™d  even 
though  done  by  the  party  to  whom  it  had  been  delivered   after  its  exe 
eution.(«)     If  an  estate  has  onee  been  conveyed  by  a  deed,  of  course  the 
snbseonent  alteration,  or  even  the  destruotion,  of  the  deed  cannot  operate 
eZvey  the  estate;  and  the  deed,  even  though  cancelled  may  be  given 
in  evidence  to  show  that  the  estate  was  conveyed  by  it  whils it  was 
valid.(z)     But  the  deed  having  become  void,  no  action  could  be  brought 
upon  any  covenant  contained  in  it.(a) 

(„)  Doe  d.  Jatum  v.  Catomore,  16  Q.  B.  745  (E.  C.  L.  It.  vol.  71). 

S  X;  vasce;™w7L2'R"; .  * ».  m, **.«. ,.  *~,  *  ***,.  ■«. 

^  T^t:  11  °C«?  ptinci8pL6o?L.W  of  Person,,  Properly,  p.  81,  41b  ed. ; 
(„)  P,g„,  »  Case,  11  Eep^  27  a     en       p  ^  ^   cbandless,  4  Bing. 

3  m  C  1  B       I    .3)      IHsaow  fin,  not'on/y  to  stea,,  bu,  also,  for  any  fr.udo- 
UnVpurpose  .!'dest^  cancel,  obliterate,  or  eoneea.,  any  docnment  of  ut.e  ,o  lands. 

Stat.  24  &  25  Vict.  c.  96,  s.  28. 

independently  of  circumstances,  there  is 
no  presumption  either  way,  but  it  is  left 
as  a  matter  of  fact  for  the  jury.  "  If  the 
alteration  appeared  to  be  written  with  the 
same  pen  and  ink  as  the  body  of  the  in- 
strument, the  natural  inference  would  be 
that  it  was  made  before  the  sealing  and 
delivery  of  the  deed.  But  if  it  did  not 
appear  to  be  made  with  the  same  pen  and 
ink,  no  such  presumption  would  arise,  and 
other  evidence  would  be  required  to  ex- 
plain it.  *  *  Whatever  may  have  been 
once  the  rule,  the  law  does  not  now  pre- 
sume that  an  interlineation  in  a  deed  is  a 
forgery,  nor  that  it  was  made  after  the  exe- 
cution of  the  instrument,  but  leaves  it  as 
a  question  of  fact  to  be  determined  by  a 
jury."  Williams,  J.yin  Robinson  v.  Myers, 
17  P.  F.  Smith  9. 


Contracts  (6th  Am.  ed.),  pp.  7,  11,  and 
notes.  The  time  when  a  deed  has  been 
delivered  as  an  escrow  takes  effect,  de- 
pends upon  the  circumstances  of  the  case. 
The  Touchstone  says,  "  to  some  purposes 
it  hath  relation  to  the  time  of  the  first  de- 
livery, and  to  some  purposes  not,"  p.  5.9. 
And  see  opinion  of  Chancellor  Kent  in 
Frost  v.  Beekman,  2  Johns.  Ch.  297  ; 
Stephens  v.  Rhinehart,  22  P.  F.  Smith 
434;  Jackson  v.  Catlin,  2  Johns.  248. 

i  In  this  country,  the  rule  that  the  alter- 
ation is  presumed  to  have  been  made  be- 
fore execution  is  not  uniformly  adopted. 
The  cases  on  the  subject  are  quite  numer- 
ous, and  by  no  means  harmonious.  See 
American  notes  to  Master  v.  Miller,  1 
Smith's  Lead.  Gas.  1282  (7th  Am.  ed.). 
The  weight  of  authority  seems  to  be  that, 


149  OF   CORPOREAL    HEREDITAMENTS. 

Previously  to  the  Stamp  Act,  1870,(6)  every  deed,  if  not  charged  with 
any  ad  valorem  or  other  stamp  duty,  nor  expressly  exempted  from  all 
stamp  duty,  was  liable  to  a  stamp  duty  of  11.  15s. ;  and  if  the  deed, 
together  with  any  schedule,  receipt,  or  other  matter  put  or  indorsed 
thereon  or  annexed  thereto,  contained  2160  words,  or  30  common  law 
folios  of  72  words  each,  or  upwards,  it  was  liable  to  a  further  progressive 
duty  of  10s.  for  every  entire  quantity  of  1080  words,  or  15  folios, 
♦over  and  above  the  first  1080  words.  But  the  duplicate  or 
L  -•  counterpart  of  any  deed  was  liable  only  to  a  stamp  duty  of  five 
shillings  and  a  progressive  duty  of  half-a-crown,  unkss  the  original  were 
liable  to  a  less  duty,  in  which  case  the  duty  was  the  same  as  on  the 
original.  If,  however,  the  deed  were  signed  or  executed  by  any  party 
thereto,  or  bore  date,  before  or  upon  the  10th  of  October,  1850,  when 
the  former  act  to  amend  the  stamp  duties  took  effect,  then  the  progres- 
sive duty  was  1?.  5s.  for  every  entire  quantity  of  1080  words  beyond 
the  first  1080. (c)  But  the  Stamp  Act,  1870,(t?)  has  now  consolidated 
and  amended  the  provisions  relating  to  the  stamp  duties.  The  stamp 
duty  for  a  deed  of  any  kind  not  described  in  the  schedule  to  the  act  is 
now  only  10s.  ;(e)  and  all  progressive  duties  are  abolished.  The  dupli- 
cate or  counterpart  of  any  deed  is  subject  to  the  same  duty  as  before, 
except  the  progressive  duty.(jf)1 

Deeds  are  divided  into  two  kinds,  Deeds  poll  and  Indentures :  a  deed 

(b)  Stat.  33  &  34  Vict.  c.  97. 

(c)  Stats.  55  Geo.  III.  c.  184;  13  &  14  Vict.  c.  9V  ;  24  &  25  Vict.  c.  91,  s.  31. 

(d)  Stat.  33  &  34  Vict.  c.  97.  {e)  Schedule  to  act,  tit.  Deed. 
(/)  Schedule  to  act,  tit.  Duplicate. 

1  By  act  of  Congress  of  June  30,  1864,  laws  requiring  stamps  on  instruments  of 

every  deed,  instrument,  or  writing,  whereby  writing    (except    bank    checks)    were    re- 

any  lands,  tenements,  or  other  realty  sold  pealed  by  act  of  Congress  of  June  6,  1872, 

shall  be  granted,  assigned,  transferred,  or  which  went  into  effect  October  1,  1872  (17 

Otherwise  conveyed    to    or  vested    in   the  Stat,  at  Large,  256).     All  deeds  between 

purchaser  must  be  stamped.     When   the  these  two    dates,  i.  e.,  July  1,  1862,    and 

consideration    or  value   does   not   exceed  October    1,    1872,    should     be     stamped. 

500  dollars,  the  stamp  is  50  cents  ;  and  for  There    was,    however,    a   proviso    in    the 

every  additional    500  dollars    or   fraction  158th  section  of  the  Internal. Revenue  Act 

thereof    50    cents    additional    stamp.      2  of  June  30,  1864,  "  That  the  title  of  a  pur- 

Brightly's   Dig.  270,  and  post,  page  192,  n.  chaser    of  land    by    deed,   duly    stamped, 

M.  shall  not  be  defeated  or  affected  by  want 

Stamp  duties  upon  deeds,  &c,  were  im-  of  a  proper  stamp  on  any  deed  conveying 

posed  bj  acts  of  Congress,  beginning  with  said  land  by  any  person  through  or  under 

the  Excise  Tax  Law  of  July  1,  1862,  which  whom  his  grantor  claims  or  holds  title;" 

went  into  operation    September   1,   1862.  and  this  has   been   re-enacted   in  several 

Many  amending  acts  were  passed,  until  all  subsequent  acts. 


OF   A    FEOFFMENT.  150 

poll  being  made  by  one  party  only,  and  an  indenture  being  made  be- 
tween two  or  more  parties.  Formerly,  when  deeds  were  more  concise 
than  at  present,  it  was  usual,  where  a  deed  was  made  between  two 
parties,  to  write  two  copies  upon  the  same  piece  of  parchment,  with 
some  word  or  letters  of  the  alphabet  written  between  them,  through 
which  the  parchment  was  cut,  often  in  an  indented  line,  so  as  to  leave 
half  the  words  on  one  part,  and  half  on  the  other,  thus  serving  the  pur- 
pose of  a  tally.  But  a^length  indenting  only  came  into  use  ;(g)  and  now 
every  deed,  to  which  there  is  more  than  one  party,  is  cut  with  an  indented 
or  waving  line  at  the  top,  and  is  called  an  indenture. (h)  Formerly,  when 
a  deed  *assumed  the  form  of  an  indenture,  every  person  who  r*i5;n 
took  any  immediate  benefit  under  it  was  always  named  as  one 
of  the  parties.  But  now  by  the  act  to  amend  the  law  of  real  property 
it  is  enacted  that,  under  an  indenture,  an  immediate  estate  or  interest 
in  any  tenements  or  hereditaments,  and  the  benefit  of  a  condition  or 
covenant  respecting  any  tenements  or  hereditaments,  may  be  taken, 
although  the  taker  thereof  be  not  named  a  party  to  the  same  indenture ; 
also  that  a  deed,  purporting  to  be  an  indenture,  shall  have  the  effect  of 
an  indenture,  although  not  actually  indented.^')1  A  deed  made  by  only 
one  party  is  polled  or  shaved  even  at  the  top,  and  is  therefore  called 
a  deed  poll ;  and,  under  such  a  deed,  any  person  may  accept  a  grant, 
though  of  course  none  but  the  party  can  make  one.2  All  deeds  must  be 
written  either  on  paper  or  parchment. (A;)3 

(g)  2  Black.  Com.  295.  (h)   Co.  Litt.  143  b. 

(*)  Stat.  8  &  9  Vict.  c.  106,  s.  5,  repealing  stat.  7  &  8  Vict.  c.  76,  s.  11,  to  the  same 
effect. 

(k)  Shep.  Touch.  54  ;  2  Black.  Com.  297. 

1  Long  before  the  act  referred  to  in  the  arrived  at  a  different  conclusion,  and  the 
text  was  passed,  the  actual  indenting  of  a  law  was  so  held  in  accordance  with  his 
deed  had  ceased  to  be  of  any  importance,  views,  in  Pennsylvania,  in  Maule  v.Weaver, 
and  served  little  other  purpose  than  to  give  7  Barr  329.  A  contrary  decision  was,  how- 
a  name  to  this  species  of  deed.  2  Black,  ever,  pronounced  in  New  Jersey,  after  an 
Com.  296.  And  the  omission  of  it  might  able  argument,  in  Finley  v.  Simpson,  2  Za- 
be  supplied  by  indenting  the  deed  in  court,  briskie  331.  In  Pennsylvania,  the  statute 
when  it  was  offered  in  evidence.  4  Cruise  of  22nd  April,  1850  (Purdon's  Digest  748), 
Real  Prop.  *11.  gives  to  the  owner  of  a  ground-rent  (as  to 

2  It  had  generally  been  considered  by  which  see  supra,  p.  124,  n.  1)  the  remedy 
the  profession  that  covenant  would  lie  by  action  of  covenant,whether  the  premises 
against  a  grantee  by  deed  poll,  by  reason  out  of  which  the  rent  issues  be  held  by  deed 
of  his  acceptance  of  the  estate  ;  but  Mr.  poll  or  otherwise.  R. 
Baron  Piatt,  in  his  treatise  on  Covenants  3  This  is  the  settled  doctrine  of  the 
(p.  10-18),  after  what  he  considered  to  be  a  common  law.  Blackstone  adds  the  reason 
careful    examination   of  the  Year  Books,  of  it.     "For   if  it   be  written   on    stone, 


151 


OF    CORPOREAL    HEREDITAMENTS. 


So  manifest  are  the  advantages  of  putting  down  in  writing  matters  of 
any  permanent  importance,  that,  as  commerce  and  civilization  advanced, 
writings  not  under  seal  must  necessarily  have  come  into  frequent  use ; 
but,  until  the  reign  of  King  Charles  II.,  the  use  of  writing  remained 
perfectly  optional  with  the  parties,  in  every  case  which  did  not  require  a 
deed  under  seal.  In  this  reign,  however,  an  act  of  parliament  was 
passed,(Z)  requiring  the  use  of  writing  in  many  transactions  which  pre- 
viously might  have  taken  place  by  mere  word  of  mouth.  This  act  is 
intituled  "An  Act  for  Prevention  of  Frauds  and  Perjuries,"  and  is  now 
commonly  called  the  Statute  of  Frauds.  It  enacts,(m)  amongst  other 
things,  that  all  leases,  estates,  interests  of  freehold,  or  terms  of  years,  or 
any  uncertain  interest,  in  messuages,  manors,  lands,  tenements,  or 
r*-i  -o-i  hereditaments,  made  or  *created  by  livery  of  seisin  only,  or  by 
*-  -"  parol,  and  not  put  in  writing,  and  signed  by  the  parties  so  making 
or  creating  the  same,  or  their  agents  thereunto  lawfully  authorized  by 
writing,  shall  have  the  force  and  effect  of  leases  or  estates  at  will  only, 
and  no  greater  force  and  effect ;  any  consideration  for  making  any  such 
parol  leases  or  estates,  or  any  former  law  or  usage,  to  the  contrary  not- 
withstanding.1    The  only  exception  to  this  sweeping  enactment  is  in 


(/)  Stat.  29  Car.  II.  c.  3. 


(m)  Sect.  1. 


I,  linen,  leather,  or  the  like,  it  is  no 
deed.  Wood  or  stone  may  be  more  du- 
rable, and  linen  less  liable  to  rasures  ; 
but  writing  on  paper  or  parchment  unites 
in  itself  more  perfectly  than  any  other 
way  both  those  desirable  qualities:  for 
there  is  nothing  else  so  durable,  and  at 
the  >ame  time  so  little  liable  to  alteration  ; 
nothing  so  secure  from  alteration,  that  is 
at  the  same  time  so  durable."  2  Bl.  Com. 
297.  It  is  possible,  however,  that  modern 
science  may  provide  a  substance  for  writing 
upon,  which  would  be  as  durable  and  as 
little  liable  to  erasure,  as  paper  or  parch- 
ment, and  in  that  case  the  reason  of  the 
law  would  fail,  and  the  courts  would 
probably  not  cling  to  an  old  rule  which 
had  losl  all  its  significance.  The  Supreme 
Court  of  Pennsylvania,  in  1875,  refused  to 
decide  the  question  whether  a  will  written 
on  a  -late  with  slate-pencil  eould  be  ad- 
mitted to  probate,  and  said  that  it  was 
"one  of  great  difficulty."  In  re  Phccbe 
Ann  Woodward's  Will,  1  Weekly  Notes 
ITT.     It    •  >  in-  to  be  settled  that  in  cases 


where  a  writing  is  required,  ink  is  not 
indispensable,  but  it  will  be  sufficient  if 
written  or  signed  with  a  lead-pencil.  A 
promissory  note  or  an  endorsement  written 
in  lead-pencil  is  good.  Geary  v.  Physic, 
5  B.  &  C.  234  (11  E.  C.  L.  R.  443) ;  Closson 
v.  Stearns,  4  Vt.  11  ;  Brown  v.  The  Butch- 
ers' Bank,  6  Hill  443.  And  so  is  a  con- 
tract required  to  be  in  writing  by  the 
Statute  of  Frauds.  Merritt  v.  Clason,  12 
Johns.  102;  Clason  v.  Bailey,  14  Johns. 
491.  A  will  written  with  ink,  and  after- 
wards altered  with  lead-pencil,  may  be 
admitted  to  probate  with  the  alterations. 
Dickenson  v.  Dickenson,  1  Phill.  Ecc.  173  ; 
Will  of  William  H.  Fuguet  (0.  C.  of  Phila- 
delphia), 31  Leg.  Int.  179.  A  probate  of  a 
codicil  written  in  lead-pencil  was  allowed. 
Rymes  v.  Clarkson,  1  Phill.  Ecc.  22.  And 
a  will  altogether  written  and  signed  in 
lead-pencil  is  valid.  In  re  Dyer,  1  Hag. 
Ecc.  219;  Myers  v.  Vanderbelt,  3  Norris 
510. 

1  It  is  believed  that  this  section  of  the 
Statute  of  Frauds  has  been  either  adopted 


OF    A    FEOFFMENT.  152 

favor  of  leases  not  exceeding  three  years  from  the  making,  and  on  which 
a  rent  of  two-thirds  at  least  of  the  full  improved  value  is  reserved  to  the 
landlord. (n)  In  consequence  of  this  act,  it  became  necessary  that  a 
feoffment  should  be  put  into  writing,  and  signed  by  the  party  making 
the  same,  or  his  agent  lawfully  authorized  by  writing ;  but  a  deed  or 
writing  under  seal  was  not  essential,(o)  if  livery  of  seisin  were  duly  made. 
But  now  by  the  act  to  amend  the  law  of  real  property,^)  it  is  provided 
that  a  feoffment,  other  than  a  feoffment  made  under  a  custom  by  an 
infant,  shall  be  void  at  law  unless  evidenced  by  deed.(^)  Where  a  deed 
is  made  use  of,  it  is  a  matter  of  doubt  whether  signing,  as  well  as  seal- 
ing, is  absolutely  necessary  ;  previously  to  the  Statute  of  Frauds,  signing 
was  not  at  all  essential  to  a  deed,  provided  it  were  only  sealed  and  de- 
livered ;(r)  and  the  Statute  of  Frauds  seems  to  be  aimed  at  transactions 
by  parol  only,  and  not  to  be  intended  to  affect  deeds.  Of  this  opinion 
is  Mr.  Preston.(s)  Sir  William  Blackstone,  on  the  other  hand,  thinks 
signing  now  to  be  as  necessary  as  sealing.(^)  And  the  Court  of  Queen's 
Bench  has,  if  possible  added  to  the  doubt.(w)  Mr.  Preston's,  r-*153-j 
*however,  appears  to  be  the  better  opinion. (a;)  However  this 
may  be,  it  would  certainly  be  most  unwise  to  raise  the  question  by 
leaving  any  deed  sealed  and  delivered,  but  not  signed. 

The  doubt  above  mentioned  is  just  of  a  class  with  many  others  with 
which  the  student  must  expect  to  meet.  Lying  just  by  the  side  of  the 
common  highway  of  legal  knowledge,  it  yet  remains  uncertain  ground. 
The  abundance  of  principles  and  the  variety  of  illustrations  to  be  found 

(n)  Stat.  29  Car.  II.  c.  3,  s.  2.  (o)  3  Prest.  Abst.  110. 

(p)  Stat.  8  &  9  Vict.  c.  106.  (q)  Sect.  3. 

(r)  Shep.  Touch.  56.  (a)  Shep.  Touch,  n.  (24),  Preston's  ed. 

(t)  2  Black.  Com.  306. 

(«)  Cooch  v.  Goodman,  2  Q.  B.  580,  597  (B.  C.  L.  R.  vol.  42). 

(x)  See  Taunton  v.  Pepler,  6  Madd.  166,  167  ;  Aveline  v.  Whisson,  4  Man.  &  Gran. 
801  (E.  C.  L.  R.  vol.  43)  ;  Cherry  v.  Heming,  4  Ex.  631,  636. 


or  re-enacted  in  all  the  United  States.    In  vania  this  has  been  remedied  by  the  act 

Pennsylvania  and  North  Carolina  it  has,  of  April   22,  1856,  which  enacts  that  all 

however,  been    held   that    the    section  in  declarations  or  creations  of  trust  shall  be 

question  does  not  apply  in  those  States  to  in  writing,  except  those  which  result  by 

trust  estates,  but  that  parol   evidence  is  implication  or  construction  of  law.     Purd. 

admissible    to    show    that    a    conveyance  Dig.    title    Frauds    and    Perjuries,    pi.    3; 

absolute  on  its  face  is,  in  fact,  a  trust  for  Barnet   v.  Dougherty,  8  Casey  371.     M.] 

another.     Murphy  v.  Hubert,  7  Barr  420  ;  Trusts    arising    by    implication    or    con- 

Wetherillv.  Hamilton,  3  Harris  198  ;  Free-  struction    of    law    are    exempted,    by   the 

man  v.  Freeman,  2  Pars.  81  ;  Blackwell  v.  Statute  of  Frauds;  see  infra,  p.  167.    R. 
Ovenby,  6  Iredell's  Eq.  R.  38.    [In  Pennsyl- 


153  OF   CORPOREAL   HEREDITAMENTS. 

in  legal  text  books  are  apt  to  mislead  the  student  into  the  supposition 
that  he  has  obtained  a  map  of  the  whole  country  which  lies  before  him. 
But  further  research  will  inform  him  that  this  opinion  is  erroneous,  and 
that,  though  the  ordinary  paths  are  well  beaten  by  author  after  author 
again  going  over  the  same  ground,  yet  much  that  lies  to  the  right  hand 
and  to  the  left  still  continues  unexplored,  or  known  only  as  doubtful  and 
dangerous.  The  manner  in  which  our  laws  are  formed  is  the  chief 
reason  for  this  prevalence  of  uncertainty.  Parliament,  the  great  framer 
of  the  laws,  seldom  undertakes  the  task  of  interpreting  them,  a  task 
indeed  which  would  itself  be  less  onerous  were  more  care  and  pains  be- 
stowed on  the  making  of  them.  But  as  it  is,  a  doubt  is  left  to  stand  for 
years,  till  the  cause  of  some  unlucky  suitor  raises  the  point  before  one 
of  the  Courts  ;  till  this  happens,  the  judges  themselves  have  no  authority 
to  remove  it ;  and  thus  it  remains  a  pest  to  society,  till  caught  in  the  act 
of  raising  a  lawsuit.  No  wonder  then,  when  judges  can  do  so  little,  that 
writers  should  avoid  all  doubtful  points.  Cases  which  have  been  de- 
cided are  continually  cited  to  illustrate  the  principles  on  which  the 
decisions  have  proceeded;  but  in  the  absence  of  decision,  a  lawyer  be- 
r*i  "A-\  comes  timid,  and  seldom  ventures  to  *draw  an  inference,  lest  he 
should  be  charged  with  introducing  a  doubt. 
To  return  :  a  feoffment,  with  a  livery  of  seisin,  though  once  the  usual 
method  of  conveyance,  has  long  since  ceased  to  be  generally  employed. 
For  many  years  past,  another  method  of  conveyance  has  been  resorted 
to,  which  could  be  made  use  of  at  any  distance  from  the  property ;  but 
as  this  mode  derived  its  effect  from  the  Statute  of  Uses,(?/)  it  will  be 
necessary  to  explain  that  statute  before  proceeding  further. 

(y)  27  Hen.  VIII.  c.  10. 


*CHAPTER  VIII.  [*155] 

OF    USES    AND   TRUSTS. 

Previously  to  the  reign  of  Henry  VIIL,  when  the  Statute  of  Uses(a) 
was  passed,  a  simple  gift  of  lands  to  a  person  and  his  heirs,  accompanied 
by  livery  of  seisin,  was  all  that  was  necessary  to  convey  to  that  person 
an  estate  in  fee  simple  in  the  lands.  The  courts  of  law  did  not  deem 
any  consideration  necessary ;  but  if  a  man  voluntarily  gave  lands  to 
another,  and  put  him  in  possession  of  them,  they  held  the  gift  to  be 
complete  and  irrevocable;  just  as  a  gift  of  money  or  goods,  made  with- 
out any  consideration,  is,  and  has  ever  been,  quite  beyond  the  power  of 
the  giver  to  retract  it,  if  accompanied  by  delivery  of  possession. (ft)  In 
law,  therefore,  the  person  to  whom  a  gift  of  lands  was  made,  and  seisin 
delivered,  was  considered  thenceforth  to  be  the  true  owner  of  the  lands. 
In  equity,  however,  this  was  not  always  the  case ;  for  the  Court  of 
Chancery,  administering  equity,  held  that  the  mere  delivery  of  the 
possession  or  seisin  by  one  person  to  another  was  not  at  all  conclusive 
of  the  right  of  the  feoffee  to  enjoy  the  lands  of  which  he  was  enfeoffed. 
Equity  was  unable  to  take  from  him  the  title  which  he  possessed,  and 
could  always  assert  in  the  courts  of  law ;  but  equity  could  and  did 
compel  him  to  make  use  of  that  legal  title,  for  the  benefit  of  any 
other  person  who  might  have  a  more  righteous  claim  to  the  beneficial 
enjoyment.  Thus  if  a  feoffment  was  made  of  lands  to  one  person  for 
the  benefit  or  to  the  use  of  another,  such  person  was  bound  in  con- 
science to  hold  the  lands  to  the  use  or  for  the  benefit  of  *the  r*-jr/.-i 
other  accordingly  ;  so  that  while  the  title  of  the  person  enfeoffed 
was  good  in  a  court  of  law.  yet  he  derived  no  benefit  from  the  gift,  for 
the  Court  of  Chancery  obliged  him  to  hold  entirely  for  the  use  of  the 
other  for  whose  benefit  the  gift  was  made.  This  device  was  introduced 
into  England  about  the  close  of  the  reign  of  Edward  III.  by  the  foreign 
ecclesiastics,  who  contrived  by  means  of  it  to  evade  the  statutes  of  mort- 
main, by  which  lands  were  prohibited  from  being  given  for  religious  pur- 
poses; for  they  obtained  grants  to  persons  to  the  use  of  the  religious 
houses,  which  grants  the  clerical  chancellors  of  those  days  held  to  be 
binding.(c)  In  process  of  time,  such  feoffments  to  one  person  to  the  use 
of  another  became  very  common  ;  for  the  Court  of  Chancery  allowed  the 

(a)  27  Hen.  VIIL  c.  10.  (b)  2  Black.  Com.  441.    - 

(c)  2  Black.  Com.  328  ;   1  Sand.  Uses  16  (15,  5th  ed.) ;  2  Fonblanque  on  Equity  3. 


156  OF    CORPOREAL    HEREDITAMENTS. 

use  of  lands  to  be  disposed  of  in  a  variety  of  ways,  amongst  others  by 
will,(d)  in  which  a  disposition  could  not  then  be  made  of  the  lands  them- 
selves.1 Sometimes  persons  made  feoffments  of  lands  to  others  to  the 
use  of  themselves  the  feoffors ;  and  when  a  person  made  a  feoffment  to  a 
stranger,  without  any  consideration  being  given,  and  without  any  declara- 
tion being  made  for  whose  use  the  feoffment  should  be,  it  was  considered 
in  Chancery  that  it  must  have  been  meant  by  the  feoffor  to  be  for  his 
own  use-O)  So  that  though  the  feoffee  became  in  law  absolutely  seised 
of  the  lands,  yet  in  equity  he  was  held  to  be  seised  of  them  to  the  use  of 
the  feoffor.  The  Court  of  Chancery  paid  no  regard  to  that  implied  con- 
sideration, which  the  law  affixed  to  every  deed  on  account  of  its  solem- 
nity, but  looked  only  to  what  actually  passed  between  the  parties  ;2  so 
that  a  feoffment  accompanied  by  a  deed,  if  no  consideration  actually 
._-.  *passed,  was  held  to  be  made  to  the  use  of  the  feoffor,  just  as  a 
*-  oll  feoffment  by  mere  parol  or  word  of  mouth.  If,  however,  there 
was  any,  even  the  smallest,  consideration  given  by  the  feoffee,(/)  such 
as  five  shillings,  the  presumption  that  the  feoffment  was  for  the  use  of  the 
feoffor  was  rebutted,  and  the  feoffee  was  held  entitled  to  his  own  use. 

Transactions  of  this  kind  became  in  time  so  frequent  that  most  of  the 
lands  in  the  kingdom  were  conveyed  to  uses  "  to  the  utter  subversion  of 
the  ancient  common  laws  of  this  realm. "(g)  The  attention  of  the  legis- 
lature was  from  time  to  time  directed  to  the  public  inconvenience  to 
which  these  uses  gave  rise  ;  and  after  several  attempts  to  amend  them, (A) 
an  act  of  parliament  was  at  last  passed  for  their  abolition.  This  act  is 
no  other  than  the  Statute  of  Uses,(tJ  a  statute  which  still  remains  in 
force,  and  exerts  at  the  present  day  a  most  important  influence  over  the 

(d)  Perkins,  ss  496,  528,  537;  Wright's  Tenures  174;  1  Sand.  Uses  65,  68,  69  (64, 
67,  68,  5th  ed.) ;  2  Black.  Coin.  329:  ante,  p.  63. 

(e)  Perkins,  s.  533  ;   1  Sand.  Uses  61,  5th  ed. ;  Co.  Litt.  271  b. 
(/)  1  Sand.  Uses  62  (61,  5th  ed.). 

(ff)  Stat.  27  Hen.  VIII.  c.  10,  preamble. 

See  particularly  stat.  1   Rich.  III.  c.  1,  enabling  the  cestui  que  use,  or  person 
beneficially  entitled,  to  convey  the  possession  without  the  concurrence  of  his  trustee. 
J7  Ben.  VIII.  c.  10. 

1  Application  to  the  Court  of  Chancery  himself,  and   not,  it  would   seem,  against 

for  tlie  purpose  of  enforcing  these  uses  was,  his    heirs.     Afterwards,  the    remedy   was 

however,  for  a  long  time  limited   to  the  extended  to  heirs,  to  alienees  with  notice 

clergj  ;    and    it    was  not   until   about  the  of  the  trust,  or  without  valuable  considera- 

reign   "I   Hen.  V.  thai  bills  were  filed  for  tion,in  which  case  notice  was  implied.  See 

this  purpose  by  the  laity.     Down  to  the  1  Spence's  Eq.  Jurid.  446,  et  seq.         R. 

time  of  Henry  VI.,  moreover,  the  cestui  que  2  See  note  to  page  13  (6th  Am.  ed.)  of 

use  could  only  proceed  against  the  feoffee  Smith  on  Contracts. 


OF    USES    AND   TRUSTS.  157 

conveyance  of  real  property.1     By  this  statute  it  was  enacted  that  where 
any  person  or  persons  shall  stand  seised  of  any  lands  or  other  heredita- 
ments to  the  use,  confidence,  or  trust  of  any  other  person  or  persons,  the 
persons  that  have  any  such  use,  confidence,  or  trust  (by  which  was  meant 
the  persons  beneficially  entitled)  shall  be  deemed  in  lawful  seisin   and 
possession  of  the  same  lands  and  hereditaments  for  such  estates  as  they 
have  in   the  use,  trust,  or  confidence.     This  statute  was  the  means   of 
effecting  a  complete  revolution  in  the  system  of  conveyancing.     It  is  a 
curious  instance  of  the  power  of  an  act  of  parliament ;  it  is  in  fact  an 
enactment  that  what  is  given  to  A.  shall,  under  certain  circumstances, 
not  be  given  to  A.  at  all,  *but  to  somebody  else.     For  suppose    p^gi 
a  feoffment  be  now  made  to  A.  and  his  heirs,  and  the  seisin 
duly  delivered  to  him  ;  if  the  feoffment  be  expressed  to  be  made  to  him 
and  his  heirs  to  the  use  of  some  other  person,  as  B.  and  his  heirs,  A. 
(who  would,  before  this  statute,  have  had  an  estate  in  fee  simple  at  law) 
now  takes  no  permanent  estate,  but  is  made  by  the  statute  to  be  merely 
a  kind  of  conduit  pipe  for  conveying  the  estate  to  B.    For  B.  (who  before 
would  have  had  only  a  use  or  trust  in  equity)  shall  now,  having  the  use, 
be  deemed  in  lawful  seisin  and  possession  ;  in  other  words,  B.  now  takes, 
not  only  the  beneficial  interest,  but  also  the  estate  in  fee  simple  at  law, 
which   is  wrested   from  A.  by  force  of  the  statute.     Again,  suppose  a 
feoffment  to  be  now  made  simply  to  A.  and  Ms  heirs  without  any  con- 
sideration.    We  have  seen  that  before  the  statute  the  feoffor  would  in 
this  case  have  been  held  in  equity  to  have  the  use,  for  want  of  any  con- 
sideration to  pass  it  to  the  feoffee;  now,  therefore,  the  feoffor,  having  the 
use,  shall  be  deemed  in  lawful  seisin  and  possession ;  and  consequently, 
by  such  a  feoffment,  although  livery  of  seisin  be  duly  made  to  A.,  yet  no 
permanent  estate  will  pass  to  him  ;  for  the  moment  he  obtains  the  estate 
he  holds  it  to  the  use  of  the  feoffor;  and  the  same  instant  comes  the 
statute,  and  gives  to  the  feoffor,  who  has  the  use,  the  seisin  and  posses- 
sion.^-)    The  feoffor,  therefore,  instantly  gets  back  all  that  be  gave; 
and  the  use  is  said  to  result  to  himself.     If,  however,  the  feoffment  be 
made  unto  and  to  the  use  of  A.  and  his  heirs — as,  before  the  statute,  A. 
would  have  been  entitled  for  his  own  use,  so  now  he  shall  be  deemed  in 
lawful  seisin  and  possession,  and  an  estate  in  fee  simple  will  effectually 
pass  to  him  accordingly.     The  propriety  of  inserting,  in  every  feoffment, 

(k)  1  Sand.  Uses  99,  100  (95,  5th  ed.). 

1  The  Statute  of  Uses,  either  by  judicial  States.  For  a  detailed  statement  of  the 
adoption  or  re-enactment,  is  in  force  to  law  in  the  several  States,  see  Perry  on 
some   extent  in  nearly  all  of  the  United     Trusts  278,  note  6. 


158  OF    CORPOREAL   HEREDITAMENTS. 

the  words  to  the  use  of,  as  well  as  to  the  feoffee,  is  therefore  manifest. 
r*i  w\  -^  aPPears  also  tnat  *an  estate  m  ^ee  simple  may  be  effectually 
conveyed  to  a  person  by  making  a  feoffment  to  any  other  person 
and  his  heirs,  to  the  use  of  or  upon  confidence  or  trust  for  such  former 
person  and  his  heirs.  Thus,  if  a  feoffment  be  made  to  A.  and  his  heirs, 
to  the  use  of  B.  and  his  heirs,  an  estate  in  fee  simple  will  now  pass  to  B. 
as  effectually  as  if  the  feoffment  had  been  made  directly  unto  and  to  the 
use  of  B.  and  his  heirs  in  the  first  instance.  The  words  to  the  use  of  are 
now  almost  universally  employed  for  such  a  purpose ;  but  "  upon  confi- 
dence," or  "  upon  trust  for,"  would  answer  as  well,  since  all  these  ex- 
pressions are  mentioned  in  the  statute. 

The  word  trust,  however,  is  never  employed  in  modern  conveyancing 
when  it  is  intended  to  vest  an  estate  in  fee  simple  in  any  person  by  force 
of  the  Statute  of  Uses.  Such  an  intention  is  always  carried  into  effect 
by  the  employment  of  the  word  use,1  and  the  word  trust  is  reserved  to 
signify  a  holding  by  one  person  for  the  benefit  of  another  similar  to 
that(7)  which,  before  the  statute,  was  called  a  use.  For,  strange  as  it 
may  appear,  with  the  Statute  of  Uses  remaining  unrepealed,  lands  are 
still,  as  everybody  knows,  frequently  vested  in  trustees,  who  have  the 
seisin  and  possession  in  law,  but  yet  have  no  beneficial  interest,  being 
liable  to  be  brought  to  account  for  the  rents  and  profits  by  means  of  the 
Chancery  Division  of  the  High  Court  of  Justice.  The  Statute  of  Uses 
was  evidently  intended  to  abolish  altogether  the  jurisdiction  of  the  Court 
of  Chancery  over  landed  estates,(ra)  by  giving  actual  possession  at  law 
to  every  person  beneficially  entitled  in  equity.  But  this  object  has  not 
been  accomplished  :  for  the  Court  of  Chancery  soon  regained  in  a  curious 
manner  its  former  ascendency,  and  has  kept  it  to  the  present  day.  So 
r*1P0"l  tna^  a^  t^ia^  was  ultimately  effected  by  the  Statute  *of  Uses 
was  to  import  into  the  rules  of  law  some  of  the  then  existing 
doctrines  of  the  Courts  of  Equity, (n)  and  to  add  three  words,  to  the  use, 

(I)  But  not  the  same,  1  Sand.  Uses  266  (278,  5th  ed.). 
(m)  Chudleigh's  Case.  1  Rep.  124,  125. 
(n)  2  Fonb.  Eq.  17. 

A . 

1  A  good  illustration  of  the  operation  of  and   one  now  common   in  England,  is  to 

the  statute  may  be  found  in  deeds  of  par-  eonvey  the   estate   to  a  stranger,  and  his 

tition.   These  are  sometimes  made  by  con-  heirs,  "to  the  use  of"  the  several  parties 

veyance  of  the  whole  undivided  estate  to  a  as  to  their  respective   shares.     Here   the 

stranger,  who  then  reconveys  it,  in  ascer-  statute  executes  the  use  at  once  in  those 

tained   shares,  to   the  several  parties   re-  parties,  who  have  thus  by'force  of  it  the 

spectively  entitled  thereto.   Aneatermode,  legal  estate  vested  in  them.  R. 


OF    USES    AND   TRUSTS.  160 

to  every  conveyance. (o)  The  Supreme  Court  of  Judicature  Act,  1873,  (») 
now  provides^)  for  the  transfer  of  the  jurisdiction  of  all  the  Courts  Loth 
of  law  and  equity  to  the  High  Court  of  Justice  thereby  established  ;  and 
it  enacts(r)  that  in  all  matters,  not  therein  particularly  mentioned,  in 
which  there  is  any  conflict  or  variance  between  the  rules  of  equity  and 
the  rules  of  the  common  law  with  reference  to  the  same  matter,  the 
rules  of  equity  shall  prevail. 

The  manner  in  which  the  Court  of  Chancery  regained  its  ascendency 
was  as  follows  :  Soon  after  the  passing  of  the  Statute  of  Uses,  a  doc- 
trine was  laid  down  that  there  could  not  be  a  use  upon  a  use.(s)  For 
instance,  suppose  a  feoffment  had  been  made  to  A.  and  his  heirs,  to  the 
use  of  B.  and  his  heirs,  to  the  use  of  C.  and  his  heirs ;  the  doctrine  was 
that  the  use  to  C.  and  his  heirs  was  a  use  upon  a  use,  and  was  therefore 
not  affected  by  the  Statute  of  Uses,  which  could  only  execute  or  operate 
on  the  use  to  B.  and  his  heirs.  So  that  B.  and  not  C.  became  entitled, 
under  such  a  feoffment,  to  an  estate  in  fee  simple  in  the  lands  comprised 
in  the  feoffment.  This  doctrine  has  much  of  the  subtlety  of  the  scho- 
lastic logic  which  was  then  prevalent.  As  Mr.  Watkins  says,(£)  it  must 
have  surprised  every  one  who  was  not  sufficiently  learned  to  have  lost 
his  common  sense.  It  was,  however,  adopted  by  the  courts,  and  is  still 
law.  Even  if  the  first  use  be  to  the  *feoffee  himself,  in  which  r^1A1l 
case  he  takes  by  the  common  law,(w)  no  subsequent  use  will  be 
executed,  and  the  feoffee  will  take  the  fee  simple ;  thus,  under  a  feoff- 
ment unto  and  to  the  use  of  A.  and  his  heirs,  to  the  use  of  C.  and  his 
heirs,  C.  takes  no  estate  in  law,  for  the  use  to  him  is  a  use  upon  a  use: 
but  the  fee  simple  vests  in  A.,  to  whom  the  use  is  first  declared. (v) 
Here  then  was  at  once  an  opportunity  for  the  Court  of  Chancery  to 
interfere.  It  was  manifestly  inequitable  that  C,  the  party  to  whom  the 
use  was  last  declared,  should  be  deprived  of  the  estate,  which  was  in- 
tended solely  for  his  benefit ;  the  Court  of  Chancery,  therefore,  inter- 
posed on  his  behalf,  and  constrained  the  party,  to  whom  the  law  had 
given  the  estate,  to  hold  in  trust  for  him  to  whom  the  use  was  last 
declared.     Thus  arose  the  modern   doctrine  of  uses  and  trusts.     And 

(o)  See  Hopkins  v.  Hopkins,  1  Atk.  591  ;  1  Sand.  Uses  265  (277,  5th  ed.). 

(p)  Stat.  36  &  37  Vict.   c.  66,  postponed  to    1st  November,   1875,  by  stat.  37  &  38 
Vict.  c.  83. 

(q)  Sects.  16,  17,  18.  (r)  Sect.  25.     Subsect.  (11). 

(s)  2  Black.  Com.  335.  (t)  Principles  of  Conveyancing,  Introduction. 

(m)  Doe  d.  Lloyd  v.  Passingham,  6  Barn.  &  Cres.  305,  317  (E.  C.  L.  R.  vol.  13) ;  Orne's 
case,  L.  R.,  8  C.  P.  281. 

(v)  Doe  d.  Lloyd  v.  Passingham,  ubi  supra. 
10 


IQl  OF    CORPOREAL   HEREDITAMENTS. 

hence  it  is  that  if  it  is  now  wished  to  vest  a  freehold  estate  in  one 
person  as  trustee,  for  another,  the  conveyance  is  made  unto  the  trustee, 
or  some  other  person  (it  is  immaterial  which),  and  his  heirs,  to  the  use  of 
the  trustee  and  his  heirs,  in  trust  for  the  party  intended  to  be  benefited 
(called  cestui  que  trust)  and  his  heirs.  An  estate  in  fee  simple  is  thus 
vested  in  the  trustee,  by  force  of  the  Statute  of  Uses,  and  the  entire 
beneficial  interest  is  given  over  to  the  cestui  que  trust  by  the  doctrines 
of  Court  of  Chancery.  The  estate  in  fee  simple,  which  is  vested  in  the 
trustee,  is  called  the  legal  estate,  being  an  estate  to  which  the  trustee 
was  entitled,  only  in  the  contemplation  of  a  court  of  law,  as  distinguished 
from  equity.  The  interest  of  the  cestui  que  trust  is  called  an  equitable 
estate,  being  an  estate  to  which  he  was  entitled  only  in  the  contempla- 
tion of  the  Court  of  Chancery  which  administered  equity.  The  Supreme 
Court  of  Judicature  Act,  1873,  has  assigned  to  the  "Chancery 
L '  lb^J  Division  of  the  High  Court  the  execution  of  trusts,  charitable 
and  private  ;(z)  but  the  doctrine  of  trusts  remains  the  same.  In  the 
present  instance,  the  equitable  estate  being  limited  to  the  cestui  que 
trust  and  his  heirs,  he  has  an  equitable  estate  in  fee  simple.  He  is 
the  beneficial  owner  of  the  property.  The  trustee,  by  virtue  of  his 
legal  estate,  has  the  right  and  power  to  receive  the  rents  and  profits ; 
but  the  cestui  que  trust  is  able,  by  virtue  of  his  estate  in  equity,  at  any 
time  to  oblige  his  trustee  to  come  to  an  account,  and  hand  over  the 
whole  of  the  proceeds. 

We  have  now  arrived  at  a  very  prevalent  and  important  kind  of  interest 
in  landed  property,  namely,  an  estate  in  equity  merely,  and  not  at  law. 
The  owner  of  such  an  estate  had  no  title  at  all  in  any  court  of  law,  but  was 
obliged  to  have  recourse  exclusively  to  the  Court  of  Chancery,1  where  he 

(z)  Stat.  36  &  37  Vict.  c.  66,  s.  34. 

1  It  is  proper  hereto  notice  the  peculiar  tice  of  administering  equity  through  the 
doctrine  which  has  prevailed  in  Perm-  medium  of  common-law  forms.  Thus, 
sylvania  as  to  this.  Until  a  few  years  under  a  plea  of  payment,  the  debtor  was 
past,  for  practical  purposes,  no  court  of  allowed  such  a  defence  as  would  discharge 
equity  existed  there.  One  was,  indeed,  him  in  a  court  of  equity,  as  want  of  con- 
iblished  in  1720,  but  it  can  scarcely  be  sideration,  fraud,  mistake  or  accident, 
nne  into  operation;  it  soon  equitable  off-set,  and  the  like.  A  plaintiff 
fell  into  disrepute,  and  in  1736  was  abol-  might  sue  on  a  lost  bond,  stating  in  lieu 
isbed.  Equity  had.  however,  as  a  branch  of  prof ert  the  cause  which  made  it  impos- 
of  the  common  law  of  England,  become  a  sible,  and  was  not  driven  to  equity  to  com- 
part of  the  law  of  the  province;  and  the  pel  a  discharge  of  the  debt.  A  surviving 
absence  of  a  separate  tribunal  in  which  to  partner  was  allowed  to  sue  at  law  the 
i  nlorce  its  principles  soon  led  to  the  prac-  executors   of  his  deceased   partner.     The 


OF   USES    AND    TRUSTS. 


162 


found  himself  considered  as  owner,  according  to  the  equitable  estate  he 
might  have  had.     Chancery  in  modern  times,  though  in  principle  the 
same  as  the  ancient  court  which  first  gave  effect  to  uses,  was  yet  widely 
different  in  the  application  of  many  of  its  rules.     Thus  we  have  seen(y) 
that  a  consideration,  however  trifling,  given  by  a  feoffee,  was  sufficient  to 
entitle  him  to  the  use  of  the  lands  of  which  he  was  enfeoffed.     But  the 
absence  of  such  a  consideration  caused  the  use  to  remain  with,  or  more 
technically  to  result  to,  the  feoffor,  according  to  the  rules  of  Chancery  in 
ancient  times.     And  this  doctrine  has  now  a  practical  bearing  on  the 
transfer  of  legal  estates ;   the  ancient  doctrines  of  Chancery  having,  by 
the  Statute  of  Uses,  become  the  means  of  determining  the  owner  of  the 
legal  estate,  whenever  uses  are  mentioned.     But  the  modern  Court  of 
Chancery  took  a  wider  scope,  and  would  not  withhold  or  grant  its  aid, 
according  to  *the  mere  payment  or  non-payment  of  five  shil-    |-*16gj 
lings :  thus  circumstances  of  fraud,  mistake,  or  the  like,  may 

(y)  Ante,  p.  157. 


specific  performance  of  a  contract  of  sale 
of  real  estate  was  enforced  by  an  action 
of  ejectment   brought    by   the   purchaser 
against  his  vendor.     The  specific  perform- 
ance of  other  contracts  was  enforced  by 
a  verdict  for  conditional  damages,  so  large 
in  amount  that  it  was  for  the  advantage  of 
the  debtor  to  yield  to  the  equity  of  the  plain- 
tiff.    The  remedy  by  the  writ  of  replevin 
was  extended  to  every  case  in  which  chat- 
tels   in    the   possession  of  one  man  were 
claimed   by   another.      Strange    as    much 
of   this    may    appear    to     the     educated 
student,  and  great  as  has  been  the  ridicule 
which  it  excited  in  the  profession  in  sister 
States,  the  system  worked  very  harmoni- 
ously for  much  more  than  a  century,  and 
has  latterly  attracted  much  attention  from 
the  profession  in  England,  and  led  to  the 
passage   of  a   statute  referred  to   at   the 
close  of  this  chapter. 

In  1836,  however,  certain  equity  powers 
were  conferred  by  the  legislature  upon 
some  of  the  courts  of  Pennsylvania,  and 
■since  that  time  these  powers  have  been 
from  year  to  year  greatly  extended,  and 
the  number  of  courts  to  which  they  have 
been  given  increased,  so  that,  for  all  prac- 
tical purposes,  there  are  few  heads  of 
equitable  jurisdiction  under  which  relief 


cannot  now  be  obtained.  This  has  not, 
however,  altered  the  practice  of  the  com- 
mon-law courts,  and  the  jurisdiction  is  in 
many  instances  concurrent.  For  a  very 
scholar-like  sketch  of  the  system  which 
has  been  briefly  alluded  to,  the  student 
may  profitably  refer  to  a  little  "  Essay  on 
Equity  in  Pennsylvania,"  written  in  1825 
by  the  late  Mr.  Laussat,  then  only  a 
student  at  law.  R- 

The  act  of  Parliament  referred  to  in  the 
preceding  note  was  the  Common  Law  Pro- 
cedure Act  of  1854  (mentioned  by  the 
author  on  page  175  of  this  edition).  A 
very  much  greater  and  more  radical  change 
in  this  respect  has  been  made  in  England 
by  the  Supreme  Court  of  Judicature  Act 
of  1873,  which,  as  stated  on  page  17G,  has 
completely  amalgamated  all  the  superior 
courts  of  law  and  equity,  and  has  provided 
that  in  all  matters,  not  therein  particu- 
larly mentioned,  in  which  there  is  any 
conflict  or  variance,  between  the  rules  of 
equity  and  the  rules  of  common  law,  with 
reference  to  the  same  matter,  the  rules  of 
equity  shall  prevail  (supra,  p.  160).  This 
statute  went  into  effect  Nov.  1,  1875,  and 
has  produced  a  complete  revolution  in  the 
methods  of  administering  justice  in  Eng- 
land. 


163  OF   CORPOREAL    HEREDITAMENTS. 

induce  the  Chancery  Division  of  the  High  Court,  which  now  stands  in 
the  place  of  the  Court  of  Chancery,  to  require  a  grantee  under  a  volun- 
tary conveyance  to  hold  merely  as  a  trustee  for  the  grantor ;  but  the 
mere  want  of  a  valuable  consideration  would  not  now  be  considered  a 
sufficient  cause  for  its  interference,  (z)1 

By  the  act  to  confer  on  the  County  Courts  a  limited  jurisdiction  in 
equity,  it  was  enacted,  amongst  other  things,  that  these  courts  should  have 
and  exercise  all  the  power  and  authority  of  the  High  Court  of  Chancery 
in  all  suits  for  the  execution  of  trusts  in  which  the  trust  estate  or  fund 
should  not  exceed  in  amount  or  value  the  sum  of  five  hundred  pounds. (a) 
This  act  came  into  operation  on  the  first  of  October,  1865.(6) 

In  the  construction  and  regulation  of  trusts,  equity  is  said  to  follow 
the  law,  that  is,  the  Court  of  Chancery  generally  adopted  the  rules  of 
law  applicable  to  legal  estates  ;(<?)  thus,  a  trust  for  A.  for  his  life,  or  for 
him  and  the  heirs  of  his  body,  or  for  him  and  his  heirs,  will  give  him  an 
equitable  estate  for  life,  in  tail,  or  in  fee  simple.  An  equitable  estate 
tail  may  also  be  barred,  in  the  same  manner  as  an  estate  tail  at  law,  and 
cannot  be  disposed  of  by  any  other  means.2     But  the  decisions  of  equity, 

(2)  1  Sand.  Uses  334  (365,  5th  ed.). 

(a)  Stat.  28  &  29  Vict.  c.  99,  s.  1,  amended  by  stat.  30  &  31  Vict.  c.  142. 

(b)  Sect.  23.  (c)  1  Sand.  Uses  269  (280,  5th  ed.). 

1  "  In  fact,"  says   Mr.  Sanders,  "  if  the  be    considered    for   every   purpose,    in   a 

mere  want  of  a  consideration  would  create  court  of  equity,   as  he   is  in   a   court  of 

a  resulting  trust,  there  could  be  no  such  law,  viz.,  as  a  mere  tenant  at  will,  how 

thing  as  a  voluntary  conveyance,  so  as  to  could    he    be    allowed    to    exercise    any 

vest  a  beneficial  interest  in  the  grantee,  acts  of  ownership  over  it,  to  alienate  or 

Circumstances  of  fraud,  mistake,  or  the  devise  it,  or  transmit  it  to  his  heirs?     How 

like,    may    convert    a    grantee    under    a  could  any  of  the  rules  of  property  or  the 

voluntary  conveyance  into  a  trustee,  but  common  or  statute  law,  by  which  estates 

not   the   mere  want  of  a  valuable    con-  of  inheritance  are  governed,  apply,  upon 

Bideration."                                              R.  this  principle,  to  an  equitable  estate?    The 

'  And  the  rule  in  Shelley's  Case  applies  harmony  and   uniformity   of  the    laws   of 

equally  to  an  equitable  as  to  a  legal  estate,  real  property  would  be  destroyed,  if  it  was 

Garth   v.  Baldwin,  2  Ves.  sen.  655 ;  Jones  to    depend   on   the    estate   being  legal  or 

\.  Morgan,  I    ISrown's  Ch.  216  ;  Fearne  on  equitable  ;  if  the  legal  estate  were  governed 

ndera    121,    124    to    148;    Pratt  v.  by  one  set  of  rules,  and  the  equitable  by 

ley,  8   Harris   264.     The  principle  another.     But  the  mischief  of  such  dis- 

thus    alluded    to    in    the    text   was    thus  cordance    has    long    been    obviated.     By 

clearly   Btated   by  Sir  T.  Plumer,   in  the  allowing  the  analogy  to  prevail  through- 

Marquia    of  Cholmondeley  v.   Clinton,    2  out,  the  same  laws  apply  equally  to  both. 

Jacob   &  Walker    148:    -'If  the   absolute  The  equitable  estate  is  the  estate  at  law 

owner   of  the    equitable    estate   were   to  in  a  court  of  equity,  and  is  governed  by 


ICQ 

OF   USES   AND   TRUSTS.  iUO 

though  given  by  rule,  and  not  at  random,  do  not  follow  the  law  in  all 
SZlit  technicalities,  but  proceed  on  a  liberal  system   -res^ent 
with  the  more  modern  origin  of  its  power.     Thus,  equitable        at 
tail,  or  in  fee  simple,  may  be  conferred  without  the  use  of  the  words 
heirs  of  the  body,  or  heirs,  if  the  intention  *be  clear  ;  for,  equity    [n64] 
pre-eminently  regards  the  intentions  and  agreements  of  parties ; 
accordingly,  words  which  at  law  would  confer  an  estate  tail  are  some- 
times construed  in  equity,  in  order  to  further  the  intention  of  the  par 
ties   as  giving  merely  an  estate  for  life,  followed  by  separate  and  inde- 
pendents tail  (o  the  children  of  the  donee.     This  construction  * 
frequently  adopted  by  equity  in  the  case  of  marriage  articl es,  where ^an 
intention  to  provide  for  the  children  might  otherwise  be  defeated  by  vest- 
ing an  estate  tail  in  one  of  the  parents,  who  could  at  once  bar  the ,  ente  , 
and  thus  deprive  the  children  of  all  benefit.(^)     So  if  lands  be  dire 
to  be  sold,  and  the  money  to  arise  from  the  sale  be  directed  to  be  laid 
out  in  the  purchase  of  other  land  to  be  settled  on  certain  persons  for h fe 
or  in  tail,  or  in  any  other  manner,  such  persons  will  be  regarded  in 
equity  as  already  in  possession  of  the  estates  they  are  intended  to  We . 
for    whatever  is  fully  agreed  to  be  done,  equity  considers  as  actually 
accomplished.     And  in  the  same  manner  if  money,  from  whatever  source 
arising,  be  directed  to  be  laid  out  in  the  purchase  of  land  to  be  settled 
in  any  manner,  equity  will  regard  the  persons  on  whom  the  lands  are  to 
settled  as  already  in  the  possession  of  their  estates.(e)     And  in  both  the 

(d)  1  Sand.  Uses  311  (337,  5th  ed.)  ;  Watkins  on  Descents  168  (214,  4th  ed.). 

(e)  1  Sand.  Uses  300  (324,  5th  ed.). 

aT^hT^nT^eTTT^l   as  all  real  actual   seisin   of  a  freehold  shall,  in   this 

proptrtvT b limitation.     The  equitable  court,  follow  for  the  benefit  of  one  in  the 

etTen   his  court  is  the  same  as  the  land,  post.     Lord  Hardwicke  explains   the   an- 

Tnd  the  trusee   is   considered  as  a  mere  alogy,  and  the  necessity  there  was  for  es. 

"strume      of  conveyance.    <  Twenty  years  tablishing  it,  in  part  of  his  judgmen tin 

aeo'Taid  Lord  Mansfield  in   Burgess    v.  Hopkins  v.  Hopkins  which  has  been  cited 

Wheat       1    Eden    224),    'I    imbibed    this  that  part  of  it  which  is   relied   upon    as 

mtdple     everything      have  heard,  read,  tending  to  negative  the  analogy  in  the  m- 

o     thought  of ^  since!  has  confirmed   that  stance  of  the  statute  of  limitations  wiU  be 

principle  in  my  mink?     And  after  illus-  hereafter  considered.     The  same  doctrine 

Sng  this   doctrine,  he  concludes  with  is  stated  in  Banks  v.  Sutton   2  PW.  U3, 

a  i  J    hat  on  clear  law  and  reason,  and  to  have  been  laid  down  by  Lord  Cowper 

he  sfeat  authority  of  the  case  of  Cas-  and  is  distinctly  recognized  and  adopted 

b    ,i        Sc^f    (  o  which  I  shall  hereafter  by  the  Master  of  the  Rolls  in 
have  occasion  to  refer),  cestui  gue  trust  is     Bridges    3  Yes.   12    "     The  whole   of  the 

actually  and  absolutely  seised  of  the  free-  judgment  pronounced  in  this  cas e  is  well 
hold  in  consideration  of  this  court,  and     worthy  the  attention  of  the  student.    ^ 
therefore  that  the  legal  consequences  of 


164  OF    CORPOREAL    HEREDITAMENTS. 

above  cases  the  estates  tail  directed  to  be  settled  may  be  barred,  before 
they  are  actually  given,  by  a  disposition  duly  enrolled,  of  the  lands  which 
are  to  be  sold  in  the  one  case,  or  of  the  money  to  be  laid  out  in  the 
other.(/)  Again,  an  equitable  estate  in  fee  simple  immediately  belongs 
to  every  purchaser  of  freehold  property  the  moment  he  has  signed  a 
contract  for  purchase,  provided  the  vendor  has  a  good  title  ;(g)  and  it  is 
understood  *that  the  whole  estate  of  the  vendor  is  contracted  for, 
L*165J  unless  a  smaller  estate  is  expressly  mentioned,  the  employment 
of  the  word  heirs  not  being  essential. (h)  If,  therefore,  the  purchaser 
were  to  die  intestate  the  moment  after  the  contract,  the  equitable  estate 
in  fee  simple,  which  he  had  just  acquired,  would  descend  to  his  heir  at 
law,  who  would  have  a  right  (to  be  enforced  in  equity)  to  have  the  estate 
paid  for  out  of  the  money  and  other  personal  estate  of  his  deceased 
ancestor  ;  and  the  vendor  would  be  a  trustee  for  the  heir,  until  he  should 
have  made  a  conveyance  of  the  legal  estate,  to  which  the  heir  would  be 
entitled.  Many  other  examples  of  equitable  or  trust  estates  in  fee  simple 
might  be  furnished. 

An  equitable  estate  in  fee  will  not  escheat  to  the  lord  upon  failure  of 
heirs  of  the  cestui  que  trust  ;(i)  for  a  trust  is  a  mere  creature  of  equity, 
and  not  a  subject  of  tenure.  In  such  a  case,  therefore,  the  trustee  will 
hold  the  lands  discharged  from  the  trust  which  has  so  failed ;  and  he  will 
accordingly  have  a  right  to  receive  the  rents  and  profits  without  being 
called  to  account  by  any  one.  In  other  words,  the  lands  will  thenceforth 
be  his  own.(fc)1     But  previously  to  the  Naturalization  Act,  1870,(Z)  it 

(/)  Stat.  3  &  4  Will  IV.  c.  74,  ss.  70,  71,  repealing  stat.  7  Geo.  IV.  c.  45,  which  re- 
pealed  stat.  39  &  40  Geo.  III.  c.  56. 

(//)  Sugd.  Vend.  &  Pur.  146  (162,  13th  ed.). 

(h)  Bower  v.  Cooper,  2  Hare  408.  (»)  1  Sand.  Uses  288  (302,  5th  ed.). 

(k)  Burgess  v.  Wheate,  1  Wm.  Black.  123  ;  1  Eden  177  ;  Taylor  v.  Haygarth,  14  Sim. 
8  ;  Davall  v.  New  River  Company,  3  De  Gex  &  Smale  394  ;  Beale  v.  Symonds,  16  Beav. 
406. 

(I)  Stat.  33  Vict.  c.  14. 

1  The  rule  stated  in  the  text,  though  Barclay  v.  Russell,  3  Ves.  424.  It  is 
now  the  settled  law  of  England,  was  ques-  doubtful  whether  it  would  be  recognized 
tinned  by  high  authority  at  the  time  it  was  as  authority  in  any  of  the  States  of  this 
declared  in  Burgess  v.  Wheate  (supra),  country.  In  Hubbard  v.  Goodwin,  3  Leigh 
and  has  been  strictly  confined  to  cases  of  492,  518,  the  Supreme  Court  of  Virginia 
escheats  of  equitable  estates  in  fee.  It  refused  to  follow  it,  and  see  Common- 
do.-  n.it  ippl\  to  chattels,  nor  to  lease-  wealth  v.  Martin,  5  Munf.  117.  It  is  con- 
holds,  nor  to  forfeitures,  nor  to  convey-  trary  to  equity  for  a  trustee  to  take  for  his 
ances  in  trust  for  aliens  or  corporations,  own  benefit  what  was  not  given  to  him, 
Middleton   v.   Spicer,  1    Bro.  Ch.  C.  201;  and  there  is  no  substantial  reason  why  the 


OF    USES   AND    TRUSTS. 


165 


was  held  that  if  lands  were  purchased  by  a  natural-born  subject  in  trust 
for  an  alien,(»  the  crown  might  claim  the  benefit  of  the  purchase :(») 
although,  if  lands  were  directed  to  be  sold,  and  the  produce  given  to  an 
alien,  the  crown  had  then  no  claim.(o)    But,  *as  we  have  seen,(  p)    r-*166-i 
the  Naturalization  Act,  1870,  now  provides  that  real  and  per- 
sonal property  of  every  description  may  be  taken,  acquired,  held,  and 
disposed*  of  by  an  alien  in  the  same  manner  in  all  respects  as  by  a 
natural-born  British  subject;  and  a  title  to  real  and  personal  property 
of  every  description  may  be  derived  through,  from,  or  in  succession  to  an 
alien  in  the  same  manner  in  all  respects  as  through,  from,  or  in  succes- 
sion to  a  natural-born  British  subject.(?)     In  the  event  of  high  treason 
being  committed  by  the  cestui  que  trust  of  an  estate  m  fee  simple,  it 
was  the  better  opinion  that  his  equitable  estate  would  be  forfeited  to  the 
crown.(r)     But,  as  we  have  seen,(s)  all  forfeitures  for  treason  are  now 
abolished.^.)     By  a  statute  of  the  present  reign,(w)  both  the  lord's  right 
of  escheat,  and  the  crown's  right  of  forfeiture,  had  already  been  taken 
away  in  the  case  of  the  failure  of  heirs  or  corruption  of  blood  of  the 
trustee,  except  so  far  as  he  himself  might  have  any  beneficial  interest  in 
the  lands  of  which  he  was  seised.(z)     And  now,  as  we  have  seen,(y)  on 
the  death  of  a  bare  trustee  intestate,  the  legal  estate  in  fee  vested  in 
him,  vests  in  his  legal  personal  representative,  from  time  to  time. (z) 

(m)  See  ante,  p.  64. 

(n)  Barrow  v.   Wadkin,  24  Bear.   1 ;  Sharp  v.   St.    Sauveur,  L.  R.   7  Ch.  Ap.  343, 
overruling  Rittson  v.  Stordy,  3  Sm.  &  Giff.  230. 

(o)  Da  Hourmelin  v.  Sheldon,  1  Beav.  79;  4  My.  &  Cr.  525. 

(p)  Ante,  p.  66.  (?)  Stat.  33  Vict.  c.  14,  s.  2. 

(r)   1  Hale  P.  C.  249.  (s)  Antei  P-  57- 

U)   Stat.  33  &  34  Vict.  c.  23. 

(«)  Stat.  13  &  14  Vict.  c.  60,  repealing  stat.  4  &  5  Will.  IV.  c.  23,  to  the  same  effect. 

{%)  Stat.  13  &  14  Vict.  c.  60,  s.  47.  {y)  Ante,  p.  116. 

(z)  Stat.  38  &  39  Vict.  c.  87,  s.  48,  repealing  stat.  37  &  38  Vict.  c.  78,  s.  5. 


distinctions  arising  chiefly  upon  principles  upon  failure  of  all  the  heirs  therein  named ; 
of  tenure  made  by  the  English  courts,  and  a  subsequent  act  passed  in  1869  ex- 
should  be  followed  here,  to  reach  such  a  pressly  declares  the  beneficial  interest  of  a 
result.  Matthews  v.  Ward,  10  Gill  &  cestui  que  trust  shall  escheat  on  his  death 
Johns  443;  McCaw  v.  Galbraith,  7  Rich-  without  heirs  or  known  kindred.  Pur- 
ardson  L.  Rep.  75  ;  Andrews  v.  Spear,  48  don's  Dig.  title  Escheat.  And  see  West's 
Texas  567.  Escheat  in  all  the  States  is  Appeal,  14  P.  F.  Smith  186  ;  West  v.  Penn- 
reaulated  by  statute,  and  in  nearly  all  of  sylvania  Co.,  14  Id.  195  ;  Olmsted's  Appeal, 
them  the  language  used  is  sufficient  to  5  Norris  284;  Naile  v.  Commonwealth, 
cover  equitable  estates.  The  Pennsylva-  Sup.  Ct.  of  Pa,  May  1879,  7  Weekly  Notes 
nia  Intestate  Law  of  1833,  which  includes  203  ;  Hill  on  Trustees  *270. 
equitable  estates,  provides  for  an  escheat 


166  OF   CORPOREAL    HEREDITAMENTS. 

The  descent  of  an  equitable  estate  on  intestacy  follows  the  rules  of 
the  descent  of  legal  estates ;  and,  therefore,  in  the  case  of  gavelkind 
and  borough-English  lands,  trusts  affecting  them  will  descend  according 
to  the  descendible  quality  of  the  tenure. (a) 

Trusts  or  equitable  estates  may  be  created  and  passed  *from 
L  J  one  person  to  another,  without  the  use  of  any  particular  cere- 
mony or  form  of  words. (b)  But  by  the  Statute  of  Frauds(c)  it  is  en- 
acted^.?) that  no  action  shall  be  brought  upon  any  agreement  made 
upon  consideration  of  marriage,  or  upon  any  contract  or  sale  of  lands, 
tenements,  or  hereditaments,  or  any  interest  in  or  concerning  them, 
unless  the  agreement  upon  which  such  action  shall  be  brought,  or  some 
memorandum  or  note  thereof,  shall  be  in  writing,  and  signed  by  the 
party  to  be  charged  therewith,  or  some  other  person  thereunto  by  him 
lawfully  authorized.  It  is  also  enacted(e)  that  all  declarations  or  crea- 
tions of  trusts  or  confidences  of  any  lands,  tenements,  or  hereditaments, 
shall  be  manifested  and  proved  by.  some  writing,  signed  by  the  party  who 
is  by  law  enabled  to  declare  such  trust,  or  by  his  last  will  in  writing ; 
and  further,(/)  that  all  grants  and  assignments  of  any  trust  or  confidence 
shall  likewise  be  in  writing,  signed  by  the  party  granting  or  assigning 
the  same,  or  by  his  last  will.  Trusts  arising  or  resulting  from  any  con- 
veyance of  lands  or  tenements,  by  implication  or  construction  of  law, 
and  trusts  transferred  or  extinguished  by  an  act  or  operation  of  law,  are 
exempt  from  this  statute.(</)  In  the  transfer  of  equitable  estates  it  is 
usual,  in  practice,  to  adopt  conveyances  applicable  to  the  legal  estate ; 
but  this  is  never  necessary. (h)  If  writing  is  used,  and  duly  signed,  in 
order  to  satisfy  the  Statute  of  Frauds,  and  the  intention  to  transfer  is 
clear,  any  words  will  answer  the  purpose.^') 

(a)  1  Sand.  Uses  270  (282,  5th  ed.). 

\b)   1  Sand.  Uses  315,  316  (343,  344,  5th  ed.). 

(c)  29  Car.  II.  c.  3. 

(d  j  Sect.  1  :  Sug.  V.  &  P.  c.  4,  pp.  96  et  seq.,  13th  ed. 

7  ;  Tierney  v.  Wood,  19  Beav.  330.  (/)  Sect.  9. 

[ff)  29  Car.  II.  c.  3,  s.  8.  (A)  1  Sand.  Uses  342  (377,  5th  ed.). 

(')  A  the  matter  whereof  is  of  the  value  of  five  pounds  or  upwards,  now 

beat  a  stamp  duty  of  Bixpence,  which  may  be  denoted  by  an  adhesive  stamp,  which  is 

:elled  by  the  person  by  whom  the  agreement  is  first  executed.     Stat.  33  &  34 

-.  36.  The  stamp  is  cancelled  by  writing  on  or  across  the  stamp  the  name 
or  initials  of  the  person  required  by  law  to  cancel  the  same,  or  the  name  or  initials  of 
Lis  firm,  together  with  the  true  date  of  his  so  writing.  Stat.  33  &  34  Vict.  c.  97,  s.  24. 
Declarations  of  trust  of  any  property  made  by  any  writing  not  being  a  deed  or  will,  or 
an  instrument  chargeable  with  ad  valorem  duty,  bear  the  same  duty  as  ordinary  deeds. 
■  1  Vict.  c.  97,  schedule;  ante,  p.  150. 


OF    USES   AND    TRUSTS. 


168 


*The  sale  of  real  estate  by  auction  is  now  regulated  by  an  act  r*lt;g-| 
which  renders  invalid  every  such  sale  where  a  puffer  is  em- 
ployed ;  and  which  requires  that  the  particulars  or  conditions  of  sale 
shall  state  whether  the  sale  is  without  reserve,  or  subject  to  a  reserved 
price,  or  whether  a  right  to  bid  is  reserved.  And  if  the  sale  is  stated  to 
be  without  reserve  or  to  that  effect,  the  seller  may  not  employ  any  per- 
son to  bid  at  the  sale,  and  the  auctioneer  may  not  knowingly  take  any 
bidding  from  any  such  person.  But  where  the  sale  is  declared  to  be 
subject  to  a  right  for  the  seller  to  bid,  he  or  any  one  person  on  his  behalf 
may  bid  at  the  auction  in  such  manner  as  he  may  think  proper.^)1  This 
act  also  very  properly  abolishes  a  practice  which  had  long  prevailed  in 
Courts  of  Chancery  of  opening  the  biddings  after  a  sale  by  auction  of 
land  under  their  authority,  if  a  price  considerably  higher  were  afterwards 
offered;  so  that  a  bona  fide  purchaser  was  never  sure  of  his  bargain. 
But  now  the  highest  bona  fide  bidder  is  to  be  declared  and  allowed  the 
purchaser,  except  in  the  case  of  fraud  or  improper  conduct  in  the  man- 
agement of  the  sale. (7) 

Courts  of  Equity,  looking  to  the  substance  of  contracts,  rather  than  to 
the  letter,  have  been  in  the  habit  of  enforcing  their  performance  in  some 
cases  where  the  time  fixed  has  gone  by,  and  the  contract  has  therefore, 
according  to  the  letter  of  the  law,  come  to  an  end.  The  Supreme  Court 
of  Judicature  Act,  1873,(ra)  *  which  transfers  to  the  court  r-*169j 
thereby  established  the  jurisdiction  of  the  superior  courts  both 

(k)  Stat.  30  &  31  Vict.  c.  48,  S3.  4,  5,  6.  (I)  Stat.  30  &  31  Vict.  c.  48,  s.  7. 

(m)  Stat.  36  &  37  Vict.  c.  66. 


i  This  act  establishes  the  doctrines  con-         Puffing  at  auctions  is  held  to  be  fraudu- 

tended  for  by  Lord  Mansfield  in  Bexwell  lent  also  in  the  following  cases  :  Pennock's 

v.  Christie,  Cowp.  395,  but  which  had  been  Appeal,  2  Harris  446  ;  Staines  v.  Shore,  4 

considered  too  stringent,  and  therefore  had  Id.  200  ;  Faucett  v.  Currier,  115  Mass.  20  ; 

been  much  relaxed  in  subsequent  cases.  Williams  v.  Bradley,  7  Heiskell  54.     And 

See  Condly  v.  Parsons,  3  Vesey  625 ;  Smith  it  is  equally  well  settled  that  false  repre- 

v.  Clark,  12  Id.  477.     It  is  now  pretty  well  sentations  or  fraudulent  combinations  by 

settled  in  the  United  States,  independently  which  persons  are  prevented  from  bidding 

of  any  statutory  provisions  on  the  subject,  at  a  public  sale,  will  entitle  the  party  de- 

that  the  employment  of  a  puffer  is  fraudu-  frauded  to  relief  in  equity.     Slingluff  v. 

lent  if  the  purpose  is  to  enhance  the  price  Eckel,  12  Harris  472  ;  Slater  v.  Maxwell,  6 

by  a  pretended  competition,  but  that  if  he  Wall.  268  ;  Dudley  v.  Little,  2  Hammond 

bids  in  good  faith  to  prevent  a  sacrifice  by  504;    Yancey    v.    Hopkins,   1    Munf.   419; 

the  sale  of  the  property  under  a  given  Rowland  v.  Doty,  Harringt.  Ch.  3 ;   Bacon 

price,  the  sale  is  valid.     See  Story's   Eq.  v.  Conor,  1  Sm.  &  Marsh.  348  ;   Cocks  v. 

Jur.  \  293  ;  2  Kent's  Comm.  539 ;  Veazie  Izard,  7  Wallace  559. 
v.  Williams,  3   Story's  Rep.  611 ;    s.  c.  8 
How.  134.                                                    M. 


169  OF    CORPOREAL    HEREDITAMENTS. 

of  law  and  equity,  accordingly  provides,(w)  that  stipulations  in  contracts, 
as  to  time  or  otherwise,  which  would  not,  before  the  commencement  of 
that  act,  have  been  deemed  to  be,  or  to  have  become,  of  the  essence  of 
such  contracts  in  a  Court  of  Equity,  shall  receive  in  all  courts  the  same 
construction  and  effect  as  they  would  have  theretofore  received  in  equity. 
The  County  Courts  have  now  jurisdiction  in  equity  in  all  suits  for 
specific  performance  of,  or  for  reforming,  delivering  up,  or  cancelling  of 
any  agreement  for  the  sale,  purchase,  or  lease  of  any  property,  where,  in 
the  case  of  a  sale  or  purchase,  the  purchase-money,  or  in  case  of  a  lease 
the  value  of  the  property,  shall  not  exceed  five  hundred  pounds.(o) 

Trust  estates,  besides  being  subject  to  voluntary  alienation,  are  also 
liable,  like  estates  at  law,  to  involuntary  alienation  for  the  payment  of 
the  owner's  debts.1  By  the  Statute  of  Frauds  it  was  provided,  that  if 
any  cestui  que  trust  should  die,  leaving  a  trust  in  fee  simple  to  descend 
to  his  heir,  such  trust  should  be  assets  by  descent,  and  the  heir  should 
be  chargeable  with  the  obligation  of  his  ancestors  for  and  by  reason  of 
such  assets,  as  fully  as  he  might  have  been  if  the  estate  in  law  had 
descended  to  him  in  possession  in  like  manner  as  the  trust  descended.^)2 
And  the  subsequent  statutes  to  which  we  have  before  referred,  for  pre- 
l~*1  01  vent'ng  *tne  debtor  from  defeating  his  bond  creditor  by  his  will, 
and  for  rendering  the  estates  of  all  persons  liable  on  their 
decease  to  the  payment  of  their  just  debts  of  every  kind,  apply  as  well 
to  equitable  or  trust  estates  as  to  estates  at  law.(^) 

The  same  Statute  of  Frauds  also  gave  a  remedy  to  the  creditor  who 
had  obtained  a  judgment  against  his   debtor,    by  providing(r)   that   it 

(n)  Sect.  25,  subsect.  (7),  amended  by  stat.  38  &  39  Vict.  c.  77,  s.  10. 

(o)  Stat.  30  &  31  Vict.  c.  142,  s.  9. 

(p)  Stat.  29  Car.  IT.  c.  3,  s.  10.  Before  this  provision  the  Court  of  Chancery  had 
refused  to  give  the  bond  creditor  any  relief.  Bennet  v.  Box,  1  Cha.  Ca.  12  ;  Prat  v. 
Colt,  Id.  128.  These  decisions,  in  all  probability,  gave  rise  to  the  above  enactment. 
See  1  Win.  Black.  159;   1  Sand.  Uses  276  (289,  5th  ed.). 

(q)  Stat.  3  .v  4  Wm.  &  Mary,  c.  14,  s.  2  ;  47  Geo.  III.  c.  74 ;  11  Geo.  IV.  &  1  Will.  IV. 
c.  47  ;  3  &  4  Will.  IV.  c.  104  ;  32  &  33  Vict.  c.  46 ;  38  &  39  Vict.  c.  77,  s.  10  ;  ante,  pp. 
81-83. 

r.  II.  c.  3,  s.  10. 

I'.  94,  n.  2.  of  such  a  character  as,  in  other  respects, 

*  This  provision  of  the  Statute  of  Frauds  to  be  governed  by  the  same  rules  as  a  legal 

has  been  i  e-enacted  in  some  of  our  States,  estate,  it  would,  equally  with  it,  be  made 

but  not  in  others  :  passim,  1  Greenl.  Cruise  liable  for  the  debts  of  its  owner.     Heath  v. 

413  ;  but  it  is  conceived  that  in  all  of  them,  Bishop,  4  Richardson's  Eq.  R.  46.         R. 
in  every  case  in  which  a  trust  estate  was 


OF    USES    AND    TRUSTS. 


170 


should  be  lawful  for  every  sheriff  or  other  officer  to  whom  any  writ  should 
be  directed,  upon  any  judgment,  to  deliver  execution  unto  the  party  in 
that  behalf  suing  of  all  such  lands  and  hereditaments  as  any  other  person 
or  persons  should  be  seised  or  possessed  of  in  trust  for  him  against  whom 
execution  was  sued,  like  as  the  sheriff  or  other  officer  might  have  done  if 
the  party  against  whom  execution  should  be  sued  had  been  seised  of 
such  lands  or  hereditaments  of  such  estate  as  they  be  seised  of  in  trust 
for  him  at  the  time  of  execution  sued.     This  enactment  was  evidently 
copied  from  a  similar  provision  made  by  a  statute  of  Henry  VIL,(s)  re- 
specting lands  of  which  any  other  person  or  persons  were  seised  to  the  use 
of  him  against  whom  execution  was  sued ;  and  which  statute  of  course 
became  inoperative  when  uses  were  by  the  Statute  of  Uses(«)  turned 
into  estates  at  law.     The  construction  placed  upon  this  enactment  of 
the  Statute  of  Frauds  was  more  favorable  to  purchasers  than  that  placed 
on  the  statute  of  Edward  I.,(w)  by  which  fee  simple  estates  at  law  were 
first  rendered  liable  to  judgment  debts.     For  it  was  held  that  although 
the  trustee  might  have  *been  seised  in  trust  for  the  debtor  at  the    q*171^j 
time  of  obtaining  the  judgment,  yet  if  he  had  conveyed  away 
the  lands  to  a  purchaser  before  execution  was  actually  sued  out  on  the 
judgment,  the  lands  could  not  afterwards  be  taken  ;  because  the  trustee 
was  not,  in  the  words  of  the  statute,  seised  in  trust  for  the  debtor  at 
the  time  of  execution  sued.{v)     The  act  for  extending  the  remedies  of 
creditors  against   the  property  of  debtors,(w)  however,  deprived  pur- 
chasers of  this  advantage,  in  consideration  perhaps  of  the  greater  facilities 
which  it  afforded  in  the  search  for  judgments ;  for  it  provided(z)  that 
execution  might  be  delivered,  under  the  writ  of  elegit,  of  all  such  lands 
and  hereditaments  as  the  person  against  whom  execution  was  sued,  or 
any  person  in  trust  for  him,  should  have  been  seised  or  possessed  of  at 
the  time  of  entering  up  the  judgment,  or  at  any  time  afterwards;  and  a 
remedy  in  equity  was  also  given  to  the  judgment  creditor  against  all 
lands  and  hereditaments  of  or  to  which  the  debtor  should  at  the  time  of 
entering  up  the  judgment,  or  at  any  time  afterwards,  be  seised,  possessed, 
or  entitled  for  any  estate  or  interest  whatever  at  law  or  in  equity,  (y) 
But  the  still  more  recent  enactments,^)  to  which  we  have  before  re- 
ferred, (a)  have  greatly  diminished  the  effect  of  these  provisions. 

(s)  Stat.  19  Hen.  VII.  c.  15.  (0  Stat.  27  Hen.  VIII.  c.  10. 

(u)  Stat.  13  Edw.  I.  c.  18  ;  ante,  p.  84. 

(v)  Hunt  v.  Coles,  Com.  226;  Harris  v.  Pugh,  4  Bing.  335  (E.  C.  L.  R.  vol.  13)  ;   12 
J.  B.  Moore  577. 

(w)  Stat.  1  &  2  Vict.  c.  110  ;  ante,  p.  86.  (x)  Sect.  11.  (y)  Sect.  13. 

(z)  Stats.  2  &  3  Vict.  c.  11,  s.  5  ;  23  &  24  Vict.  c.  38,  ss.  1,  2  ;  '27  &  28  Vict.  c.  112. 
(a)  Ante,  pp.  87-89. 


171  OF    CORPOREAL   HEREDITAMENTS. 

Trust  estates  are  subject  to  debts  due  to  the  crown  in  the  same  manner 
and  to  the  same  extent  as  estates  at  law.(fi)  They  are  also  equally  liable 
to  involuntary  alienation  on  the  bankruptcy  of  the  cestui  que  trust. 
r*-i-.9-|  But,  on  the  bankruptcy  of  the  trustee,  the  legal  estate  *in  the 
premises  of  which  he  is  trustee  remains  vested  in  him,  and  does 
not  pass  to  the  trustee  for  his  creditors  ;(cf  and  the  same  rule  formerly 
applied  to  cases  of  insolvency.(c?) 

The  circumstance  of  property  being  vested  in  trustees  sometimes  oc- 
casions inconvenience.  A  trustee  may  become  lunatic,  or  may  leave  the 
country,  or  may  refuse  to  convey,  when  required,  the  lands  of  which  he 
is  trustee ;  or  he  may  die  intestate  without  an  heir,  or  leaving  an  infant 
heir,  on  whom,  if  he  was  a  sole  or  a  sole  surviving  trustee,  other  than  a 
merely  bare  trustee,(V)  the  lands  will  descend  at  law.  In  order  to 
remedy  the  inconvenience  thus  occasioned  to  the  persons  beneficially 
entitled,  it  is  provided  by  acts  of  parliament  of  the  present  reign(/)  that 
in  the  case  of  a  lunatic  trustee,  the  Lord  Chancellor,  or  the  judges 
entrusted  by  the  queen's  sign  manual  with  the  care  of  the  persons  and 
estates  of  lunatics,  and  the  Chancery  Division  of  the  High  Court  in 
other  cases,  may  make  an  order  vesting  the  lands  in  any  other  person 
or  persons ;  and  such  an  order  will  operate  as  a  valid  conveyance  of 
such  lands  accordingly.  It  is  also  provided  that,  whenever  it  is  expe- 
dient to  appoint  a  new  trustee,  and  it  is  inexpedient,  difficult,  or  im- 
practicable to  do  so  without  the  assistance  of  the  Court,  the  Court  may 
make  an  order  appointing  a  new  trustee  or  new  trustees,  either  in  sub- 
stitution for  or  in  addition  to  any  existing  trustee  or  trustees,(  #)  or 
whether  there  be  any  existing  trustee  or  not.(^)  The  Court  is  also 
r*i"Qi  *empowered  to  appoint  a  new  trustee  in  the  place  of  any  trustee 
J  who  shall  have  been  convicted  of  felony. (i)  And  upon  making 
any  order  appointing  a  new  trustee,  the  Court  may  direct  that  any  lands 

I  '■■     King  v.  Smith,  Sugd.  Ven.  &  Pur.  Appendix,  No.  15,  p.  1098,  11th  ed. 

(c)  Stat.  32  &  33  Vict.  c.  71,  s.  15,  par.  (1). 

yd)  Sims  v.  Thomas,  12  Ad.  &  El.  536  (E.  C.  L.  R.  vol.  40). 

3ee  ante,  pp.  116,  166. 
(/)  Stats.  13  &  14  Vict.  c.  60,  and  15  &  16  Vict.  c.  55,  repealing  and  consolidating 
II  Geo.  IV.  &  1  Will.  IV.  c.  60;  4  &  5  Will.  IV.  c.  23,  and  1  &  2  Vict.  c.  69.     See 
36  &  37  Vict.  c.  66,  and  38  &  39  Vict.  c.  77,  s.  7. 
13  k  14  Vict.  c.  60,  s.  32.  (h)  Stat.  15  &  16  Vict.  c.  55,  s.  9. 

Sect.  8. 

1  The  law  is  the  same  on  both  sides  of    Hill  on  Trustees  530,  n.  R. 

the  Atlantic;  see  the  American  edition  of 


OF    USES   AND    TRUSTS.  173 

subject  to  the  trust  shall  vest  in  the  person  or  persons  who,  upon  the 
appointment,  shall  be  the  trustee  or  trustees  for  such  estate  as  the  Court 
shall  direct;  and  such  order  will  have  the  same  effect  as  if  the  person  or 
persons  who  before  such  order  were  the  trustee  or  trustees  (if  any)  had 
duly  executed  all  proper  conveyances  of  such  lands. (A;)1     Property  held 
in  trust  for  charities  may  also  be  vested  by  the  Court  in  new  trustees,  or 
in  the  official  trustee  of  charity  lands,  without  any  conveyance.(^)     But 
every  such  order  is  now  chargeable  with  a  stamp  duty  of  10s. (m)     All 
the  power  and  authority  of  the  Court,  in  any  of  the  above-mentioned 
matters,  is  now  vested  in  the  County  Courts,  in  all  proceedings  in  which 
the  trust  estate  or  fund  to  which  the  proceeding  relates  shall  not  ex- 
ceed in  amount  or  value  the  sum  of  five  hundred  pounds. (n)     By  another 
act  of  parliament(o)  provision  is  made  for  vesting  the  property  of  congre- 
gations or  societies  for  purposes  of  religious  worship  or  education  in  new 
trustees,  from  time  to  time,  without  any  conveyance.     The  provisions  of 
this  act  have  recently  been  extended  to  literary  and  scientific  institu- 
tions,^) and  also  to   burial  grounds.^)     The  act  to  facilitate  the  in- 
corporation of  trustees  of  charities  for  religious,   educational,  literary, 
scientific,  and  public  charitable  purposes  has  already  been  referred  to.(r) 
*An  act  has  also  been  passed  which  contains  a  general  provision    r*-.^! 
for  the  appointment  of  new  trustees,  similar  to  the  powers  for 
that  purpose  ordinarily  inserted  in  well-drawn  trust   deeds.     This  act, 
which  is  intituled  "  An  Act  to  give  to  Trustees,  Mortgagees,  and  others 
certain  Powers  now  commonly  inserted  in  Settlements,  Mortgages,  and 
Wills,"  extends  to  instruments  executed,  or  wills  confirmed  or  revived  by 
codicil  executed  after  the  28th  of  August,  1860,  the  date  of  the  act.(s) 
It  provides(^)  that  whenever  any  trustee  shall  die,  or  desire  to  be  dis- 
charged from,  or  refuse  or  become  unfit  or  incapable  to  act  in,  the  trusts 
or  powers  reposed   in    him,   the    surviving  or    continuing    trustees  or 
trustee,  or  the  acting  executors  or  administrators  of  the  last  surviving  or 

(k)  Stat.  13  &  14  Vict.  c.  60,  s.  34. 

(I)  Sect.  45.     Stats.  16  &  17  Vict.  c.  137,  s.  48  ;  18  and  19  Vict.  c.  124,  s.  15  ;  23  &  24 
Vict.  c.  136  ;   25  &  26  Vict.  c.  112  ;  32  &  33  Vict.  c.  110. 

(m)  Stat.  33  &  34  Vict.  c.  97,  s.  78.  (n)  Stat.  28  &  29  Vict.  c.  99,  s.  1. 

(o)  Stat.  13  &  14  Vict.  c.  28.  (p)  Stat.  17  &  18  Vict.  c.  112,  s.  12. 

(q)  Stat.  32  &  33  Vict.  c.  36. 

(r)  Stat.  35  &  36  Vict.  c.  24  ;  ante,  pp.  77,  78. 

(s)  Stat.  23  &  24  Vict.  c.  145,  s.  34.  (I)  Sect.  27. 


1  The  student  will  find  a  very  full  refer-     edition  of  Hill  on  Trustees,  by  Wharton 
ence  to  the  local  statutes  as  to  the  substi-     and  Bispham,  190.  R. 

tution    of  trustees,  in  the  last  American 


274  OF    CORPOREAL    HEREDITAMENTS. 

continuing  trustee,  or  the  last  retiring  trustee,  may,  if  there  be  no  per- 
son nominated  for  that  purpose  by  the  instrument  creating  the  trust,  or 
no  such  person  able  and  willing  to  act,  appoint  a  new  trustee.  And 
every  Mich  trustee,  and  also  every  trustee  appointed  by  the  Court, 
either  before  or  after  the  passing  of  the  act,  is  invested  with  the  same 
powers  as  if  he  had  been  originally  nominated  by  the  instrument  creating 
the  trust(w)  And  the  above-mentioned  power  of  appointing  new  trustees 
may  he  exercised  in  cases  where  a  trustee  nominated  in  a  will  has  died 
in  the  lifetime  of  the  testator,  as  well  as  where  he  may  have  died  after 
the  testator's  decease.(a;)  It  is  now  provided  that  a  conveyance  or 
transfer  made  for  effectuating  the  appointment  of  a  new  trustee  is  not 
to  be  charged  with  any  higher  duty  than  10*.(#) 

*The  concurrent  existence  of  two  distinct  systems  of  jurispru- 
L  -1  dence  was  a  peculiar  feature  of  English  law.  On  one  side  of 
Westminster  Hall  a  man  might  have  succeeded  in  his  suit  under  circum- 
stances in  which  he  would  undoubtedly  have  been  defeated  on  the  other 
side;1  for  he  might  have  had  a  title  in  equity  and  not  at  law  (being  a 
cestui  que  trust),  or  a  title  at  law  and  not  in  equity  (being  merely  a 
trustee).  In  the  former  case,  though  he  would  have  succeeded  in  a 
chancery  suit,  he  never  wrould  have  thought  of  bringing  an  action  at 
law  ;  in  the  latter  case  he  would  have  succeeded  in  an  action  at  law,  but 

(u)  The  words  Court  of  Chancer}'  which  are  used  in  the  Act  extend  to  and  in- 
clude the  Court  of  Chancery  of  the  County  Palatine  of  Lancaster.  Stat.  28  &  29 
Vict.  c.  40. 

(x)  Stat.  23  &  24  Vict.  c.  145,  s.  28.  ( y)  Stat.  33  &  34  Vict.  c.  97,  s.  78. 

1  Sir  E.  Sugden  has  expressed  the  same  rules,  although   frequently   subversive    of 

idea  in  his  "  Letters  to  a  Man  of  Property."  substantial  justice,   that  the   chancellors 

"  It  must  sound  oddly  to  a  foreiguer,  that  interfered,  and  moderated  the  rigor  of  the 

on   one   side  of  Westminster  Hall  a  man  law,  according,  as  it  is  termed,  to  equity 

-.hall  recover  an  estate  without  argument,  and  good  conscience.    The  judges  in  equity 

on   account   of  the  clearness  of  his  title,  soon  found  it  necessary,  like  the  comuion- 

and  that  on  the  other  side  of  the  Hall,  his  law  judges,  to  adhere  to  the  decisions  of 

adversary  shall,  with  equal  facility,  recover  their  predecessors  ;  whence  it  has  inevita- 

back  the  estate.     In  all  other  countries  the  bly  happened,  that  there  are   settled  and 

Ian  is  tempered  with  equity  ;  and  the  same  inviolable  rules  of  equity,  which  require 

grounds  rule,  the  same   cases  in  all   the  to  be  moderated  by  the  rules  of  good  con- 

courts  of  justice.     The  division  of  our  law  science,  as  much  as  ever  the  most  rigorous 

into  wbal   is  termed    legal  and  equitable  and    inflexible    rule    of   law   did    before 

parti]    from    necessity,    and    partly  the  chancellors   interposed   on    equitable 

from    the   desire   of    the    ecclesiastics   of  grounds."     P.  4.  R. 

former  times  to  usurp  a  control  over  the         The    distinction    between   common-law 

common-law    courts.     Our     legal    judges  courts  and  courts  of  equity  was  abolished 

i  strictly  to  technical  in  England  in  1873.  See  supra,  p.  162,  note. 


OF    USES    AND    TRUSTS.  175 

equity  would  take  care  that  the  fruits  should  be  reaped  only  by  the 
person  beneficially  entitled.  The  equitable  title  was,  therefore,  the  bene- 
ficial one,  but  if  barely  equitable,  it  might  have  occasioned  the  expense 
and  delay  of  a  chancery  suit  to  maintain  it. 

A  step  was  taken  towards  the  amalgamation  of  law  and  equity  by  the 
Common  Law  Procedure  Act,  1854,(2)  which  conferred  on  the  Courts  of 
Common  Law  an  extensive  equitable  jurisdiction.  The  plaintiff  in  any 
action  except  replevin  and  ejectment  was  allowed  to  claim  a  writ  of  man- 
damus commanding  the  defendant  to  fulfill  any  duty  in  the  fulfillment  of 
which  the  plaintiff  was  personally  interested,(a)  and  by  the  nonperform- 
ance of  which  he  might  have  sustained  damages. (b)  In  all  cases  of 
breach  of  contract  or  other  injury,  where  the  party  injured  was  entitled 
to  maintain  and  had  brought  an  action,  he  was  allowed  to  claim  a  writ 
of  injunction  against  the  repetition  or  continuance  of  such  breach  or  in- 
jury, (c)  If  the  defendant  would  have  been  entitled  to  relief  against  the 
judgment  on  equitable  grounds,  he  was  allowed  to  plead,  by  way  of 
*defence  to  the  action,  the  facts  which  entitled  him  to  such  re-  r^-i^-i 
lief  ;(d)  and  the  plaintiff  might  have  replied,  in  answer  to  any  ^  ■* 
plea  of  the  defendant's,  facts  which  avoided  such  plea  on  equitable 
grounds. (e)  But  the  facts  pleaded  were  required  to  be  such  as  would  en- 
title the  person  pleading  them  to  absolute  and  unconditional  relief  in  the 
Court  of  Chancery,  otherwise  the  plea  would  not  have  been  allowed. (/) 
The  change  effected  was  not  therefore  so  great  as  might,  at  first  sight, 
have  been  supposed.1  Another  act  of  parliament  conferred  a  common 
law  jurisdiction  upon  the  Court  of  Chancery: — the  Chancery  Amend- 
ment Act,  1858,(^)  empowered  the  Court  of  Chancery  to  award  damages 
like  a  Court  of  Law  in  all  cases  of  injunction  and  specific  performance  ;(Ji) 
and  the  amount  of  such  damages  might  have  been  assessed,  or  any  ques- 
tion of  fact  tried,  by  a  jury  before  the  Court  itself,^')  or  by  the  Court 
itself  without  a  jury. (k) 

(z)  Stat.  17  &  18  Vict.  c.  125.  (a)  Sect.  68. 

(b)  Sect.  69.  (C)  Sect.  79. 

(d)  Sect.  83.  (e)  Sect.  85. 

(/)  Mines  Royal  Societies  v.  Magnay,  10  Exch  489;  Wodehouse  v.  Farebrother,  5 
E.  &  B.  277  (E.  C.  L.  R.  vol.  85);  Wood  v.  Copper  Miners'  Company,  17  C.  B.  561 
(E.  C.  L.  R.  vol.  84)  ;  Flight  v.  Gray,  3  C.  B.  N.  S.  320  (E.  C.  L.  R.  vol.  91)  ;  Gee  v. 
Smart,  8  E.  &  B.  313  (E.  C.  L.  R.  vol.  92)  ;  Jeffs  v.  Day,  1  Law  Rep.  Q.  B.  372  ;  Mur- 
phy v.  Glass,  2  Law  Rep.  P.  C.  408 ;  Allen  v.  Walker,  5  Law  Rep.  Exch.  187. 

(ff)  Stat.  21  &  22  Vict.  c.  27.  (h)  Sect.  2. 

(i)  Sects.  3,  4.  (&)  Sect.  5. 


1  See  ante,  p.  162,  n.  1. 


17(3  OF   CORPOREAL    HEREDITAMENTS. 

The   Supreme  Court  of  Judicatory  Act,  1873,(0  to  which  we  have 
already  referred,(m)  has  now  amalgamated  all  the  Superior  Courts  of 
law  and  equity.     It  provides(n)  that  if  any  plaintiff  claims  to  be  entitled 
to  any  equitable  estate  or  right,  or  to  relief  upon  any  equitable  ground, 
against  any  deed,  instrument,  or  contract,  or  against  any  right,  title,  or 
claim  whatsoever  asserted  by  the  defendant,  or  to  any  relief  founded 
__-    upon  *a  legal  right  which  theretofore  could  only  have  been  given 
L     MJ    by  a  court  of  equity,  the  courts  respectively,  and  every  judge 
thereof,  shall  give  to  such  plaintiff  the  same  relief  as  ought  to  have  been 
(riven  by  the  Court  of  Chancery  in  a  suit  or  other  proceeding  for  the 
same  or  the  like  purpose  properly  instituted  before  the  passing  of  the  act. 
It  also  provides(o)  that  if  any  defendant  claims   to  be   entitled  to  any 
equitable  estate  or  right,  or.  to  relief  upon  any  equitable  ground,  against 
any  deed,  instrument,  or  contract,  or  against  any  right,  title,  or  claim 
asserted  by  the  plaintiff,  or  alleges  any  ground  of  equitable  defence  to 
any  claim  of  the  plaintiff,  the  said  courts  respectively,  and  every  judge 
thereof,  shall  give  to  every  equitable  estate,  right,  or  ground  of  relief  so 
claimed,  and   to  every  equitable  defence  so  alleged,  the  same  effect,  by 
way  of  defence  against  the  claim  of  the  plaintiff,  as  the  Court  of  Chan- 
cery  ou^ht  to  have  given,  if  the  same  or  the  like  matters  had  been  relied 
on  by  way  of  defence  in  any  suit  or  proceeding  instituted  in  that  court 
for  the  same  or  the  like  purpose  before  the  passing  of  the  act.     Provis- 
ion is  made  for  counter  claims  by  the  defendant.^)     Incidental  equities 
are  also  to  be  recognized   by  the  courts  respectively  and  every  judge 
thereof.^)     And  no  cause  or  proceeding  at   any  time  pending  in  the 
High  Court  of  Justice,  or  before  the  Court  of  Appeal,  is  to  be  restrained 
by  prohibition  or  injunction  ;  but  every  matter  of  equity,  on  which  an 
injunction    against   the   prosecution   of   any   such    cause  or    proceeding 
might   have   been  obtained,  if  the   act   had  not   passed,  either  uncon- 
ditionally or  on  any  terms  or  conditions,  may  be   relied  on  by  way  of 
defence  thereto.     Proceedings,  however,  may  be  stayed  as  therein  pro- 
r*i7o-i    vided.(r)     *Suhject  to  these  provisions,  all  legal  rights  are  to  be 
'    recognized  as  before.(s)     And,  as  far  as  possible,  all  matters  in 
controversy  between  the  parties  are  to  be  settled  in  the  same  action,  and 

tat  36  «v  37  Vict.  c.  66,  amended  by  stats.  38  &  39  Vict.  c.  77,  and  39  &  40  Vict. 

Inte,  pp.  25,  1G0,  1G8. 

:  Vict.  c.  66,  s.  •-'4,  subsect.  (1). 

(p)  Sect.  24,  subsect.  (3). 
t.  (4).  (r)  Sect.  24,  subsect.  (5). 

(«j  Stat.  36  &  37  Vict.  c.  66,  sect.  24,  subsect.  (6). 


OF    USES    AND    TRUSTS.  178 

all  multiplicity  of  legal  proceedings  concerning  any  of  such  matters  is 
to  be  avoided^)  The  act  further  provides^)  that  a  mandamus  or  an 
njunction  may  be  granted  by  an  interlocutory  order  of  the  court  m 
all  cases  in  which  it  shall  appear  to  the  court  to  be  just  or  convemen 
that  such  order  sbonld  be  made;  and  any  such  order  may  be  made 
either  unconditionally  or  upon  such  terms  and  conditions  as  the  court 
shall  think  just. 

Trusts,  however,  are  not  abolished;  and,  as  we  have  seen,  the  execu- 
tion   of  trusts,  charitable    and   private,  is    assigned   to    the   Chancery 
Division  of  the  court.(x)     The  beneficial  title  is  still  called  the  equitable 
title;  and  the  legal  estate  may  still  be  vested  in  some  other  person  than 
the  beneficial  owner.     Every  purchaser  of  landed  property  has   there- 
fore, a  right  to  a  good  title  both  at  law  and  in  equity  ;  and  it  the  legal 
estate  should  be  vested  in  a  trustee,  or  any  person  other  than  the  vendor 
the  concurrence  of  such  trustee  or  other  person  must  be  obtained [tor 
the  purpose  of  vesting  the  legal  estate  in  the  purchaser,  or,  it  he  should 
please,  in  a  new  trustee  of  his  own  choosing.     When  a  person  has  an 
estate  at  law,  and  does  not  hold  it  subject  to  any  trust,  he  has  of  course 
the  same  estate  in  equity,  but  without  any  occasion  for  resorting  to  its 
aid      To  him,  therefore,  the  doctrine  of  trusts  does  not  apply  :  his  legal 
title  is  sufficient;  the  law  declares  the  nature  *and  incidents  ot    [n79-j 
his  estate,  and  equity  has  no  ground  for  interference. (y) 

We  shall  now  take  leave  of  equity  and  equitable  estates,  and  proceed, 
in  the  next  chapter,  to  explain  a  modern  conveyance. 

(0  Sect.  24,  subsect.  (7).  W  Sect.  25,  subsect.  (8). 

(x)  Sect.  34,  subsect.  (3),  ante,  pp.  161,  162. 
(y)  See  Brydges  v.  Brydges,  3  Ves.  127. 


11 


[*180]  CHAPTER    IX. 

OF    A    MODERN    CONVEYANCE. 

In  modern  times,  down  to  the  year  1841,  the  kind  of  conveyance  em- 
ployed, on  every  ordinary  purchase  of  a  freehold  estate,  was  called  a 
lease  and  release ;  and  for  every  such  transaction  two  deeds  were  always 
required.  From  that  time  to  the  year  1845,  the  ordinary  method  of 
conveyance  was  a  release  merely,  or,  more  accurately,  a  release  made  in 
pursuance  of  the  act  of  pariiament(a)  intituled  "An  act  for  rendering  a 
Release  as  effectual  for  the  Conveyance  of  Freehold  Estates  as  a  Lease 
and  Release  by  the  same  Parties."  The  object  of  this  act  was  merely 
to  save  the  expense  of  two  deeds  to  every  purchase,  by  rendering  the 
lease  unnecessary. 

A  further  alteration  was  then  made,  by  the  act  to  simplify  the  trans- 
fer of  property,(6)  which  enacted(e)  that,  after  the  31st  day  of  December, 
1844,  every  person  might  convey  by  any  deed,  without  livery  of  seisin, 
or  a -prior  lease,  all  such  freehold  land  as  he  might,  before  the  passing  of 
the  act,  have  conveyed  by  lease  and  release,  and  every  such  conveyance 
should  take  effect,  as  if  it  had  been  made  by  lease  and  release ;  provided 
always  that  every  such  deed  should  be  chargeable  with  the  same  stamp 
duty  as  would  have  been  chargeable  if  such  conveyance  had  been  made 
by  lease  and  release. 

I~*18"n  *This  act,  however,  had  not  been  in  operation  more  than  nine 
months  when  it  was  repealed  by  the  act  to  amend  the  law  of  real 
property,(t?)  which  provides  that  after  the  1st  of  October,  1845,  all  cor- 
poreal tenements  and  hereditaments  shall,  as  regards  the  conveyance  of 
the  immediate  freehold  thereof,  be  deemed  to  lie  in  grant  as  well  as  in 
livery.  A  simple  deed  of  grant  is  therefore  now  sufficient  to  grant  the 
freehold  or  feudal  seisin  of  all  lands. (e)     But  as  a  lease  and  release  was 

(a)  Stat.  4  &  5  Vict.  c.  21.  (b)  Stat.  7  &  8  Vict.  c.  76. 

(c)  Sects.  2,  13.  (d)  Stat.  8  &  9  Vict.  c.  106,  s.  2. 

(e)  By  the  second  section  of  the  act,  the  stamp  duty  on  this  single  deed  was  the  same 
as  was  chargeable  on  the  lease  and  release,  except  the  progressive  duty  on  the  lease. 
But  the  duty  on  the  lease  for  a  year  was  repealed  by  stat.  13  &  14  Vict.  c.  97,  s.  6,  so 
far  as  related  to  any  deed  or  instrument  bearing  date  after  the  10th  of  October,  1850. 
This  act  with  many  others  is  now  repealed  by  stat.  33  &  34  Vict.  c.  99  ;  and  the  stamp 
duties  on  deeds  are  now  governed  by  the  Stamp  Act  1870,  stat.  33  &  34  Vict.  c.  97. 


OF    A    MODERN    CONVEYANCE.  181 

so  long  the  usual  method  of  conveyance,  the  nature  of  a  conveyance  by 
lease  and  release  should  still  form  a  subject  of  the  student's  inquiry  ;  and 
with  this  we  will  accordingly  begin. 

From  the  little  that  has  already  been  said  concerning  a  lease  for 
years,(/)  the  reader  will  have  gathered  that  the  lessee  is  put  into  pos- 
session of  the  premises  leased  for  a  definite  time,  although  his  possession 
has  nothing  feudal  in  its  nature,  for  the  law  still  recognizes  the  landlord 
as  retaining  the  seisin  or  feudal  possession.  Entry  by  the  tenant  was, 
however,  in  ancient  times,  absolutely  necessary  to  make  a  complete 
lease  ;(g)  although,  in  accordance  with  feudal  principles,  it  was  not  neces- 
sary that  the  landlord  should  depart  at  once  and  altogether,  as  he  must 
have  done  in  the  case  of  a  feeoffment  where  the  feudal  seisin  was  trans- 
ferred. When  the  tenant  had  thus  gained  a  footing  on  the  premises, 
under  an  express  contract  with  his  landlord,  *he  became,  with  r^^QC)-, 
respect  to  the  feudal  possession,  in  a  different  possession  from  a  L  l  "■* 
mere  stranger;  for,  he  was  then  capable  of  acquiring  such  feudal  pos- 
session, without  any  formal  livery  of  seisin,  by  a  transfer  or  conveyance, 
from  his  landlord,  of  all  his  (the  landlord's)  estate  in  the  premises.  Be- 
ing already  in  possession  by  the  act  and  agreement  of  his  landlord,  and 
under  a  tenancy  recognized  by  the  law,  there  was  not  the  same  necessity 
for  that  open  delivery  of  the  seisin  to  him  as  there  would  have  been  to  a 
mere  stranger.  In  his  case,  indeed,  livery  of  seisin  would  have  been  im- 
proper, for  he  was  already  in  possession  under  his  lease  ;{h)  and,  as  a  de- 
livery of  the  possession  of  the  lands  could  not,  therefore,  be  made  to  him, 
it  was  necessary  that  the  landlord's  interest  should  be  conveyed  in  some 
other  manner.  Now  the  ancient  common  law  always  required  that  a 
transfer  or  gift  of  every  kind  relating  to  real  property  should  be  made, 
either  by  actual  or  symbolical  delivery  of  the  subject  of  the  transfer,  or, 
when  this  was  impossible,  by  the  delivery  of  a  written  document.(^)  But 
in  former  times,  as  we  have  seen, (A:)  every  writing  was  under  seal ;  and 
a  writing  so  sealed  and  delivered  is  in  fact  a  deed.  In  this  case,  there- 
fore, a  deed  was  required  for  the  conveyance  of  the  landlord's  interest  ;(l) 
and  such  conveyance  by  deed,  under  the  above  circumstances,  was  termed 
a  release.  To  a  lease  and  release  of  this  kind,  it  is  obvious  that  the  same 
objection  applies  as  to  a  feoffment :  the  inconvenience  of  actually  going 
on  the  premises  is  not  obviated  ;  for,  the  tenant  must  enter  before  he  can 

(/)  Ante,  pp.  8,  117.  ( g)  Litt.  s.  459 ;  Co.  Litt.  270  a. 

(A)  Litt.  s.  460;  Gilb.  Uses  and  Trusts  104  (223,  3d  ed.). 

(t)  Co.  Litt.  9  a:  Doe  d.  Were  v.  Cole,  7  Barn.  &  Cress.  243,  248  (E.  C.  L.  R.  vol.  14) ; 
ante,  p.  11. 

(k)  Ante,  p.  147.  (Z)  Shep.  Touch.  320. 


182  OF    CORPOREAL    HEREDITAMENTS. 

receive  the  release.  In  the  very  early  periods  of  our  history,  this  kind 
of  circuitous  conveyance  was,  however,  occasionally  used.  A  lease  was 
r*-ioo-|  made  for  one,  two,  or  three  years,  completed  by  the  *actual  en- 
try of  the  lessee,  for  the  express  purpose  of  enabling  him  to  re- 
ceive a  release  of  the  inheritance,  which  was  accordingly  made  to  him  a 
short  time  afterwards.  The  lease  and  release,  executed  in  this  manner, 
transferred  the  freehold  of  the  releasor  as  effectually  as  if  it  had  been 
conveyed  by  feoffment. (m)  But  a  lease  and  release  would  never  have 
obtained  the  prevalence  they  afterwards  acquired  had  not  a  method  been 
found  out  of  making  a  lease,  without  the  necessity  of  actual  entry  by  the 
lessee. 

The  Statute  of  Uses(w)  was  the  means  of  accomplishing  this  desirable 
object.  This  statute,  it  may  be  remembered,  enacts  that  when  any 
person  is  seised  of  lands  to  the  use  of  another,  he  that  has  the  use  shall 
be  deemed  in  lawful  seisin  and  possession  of  the  lands,  for  the  same 
estate  as  he  has  in  the  use.  Now,  besides  a  feoffment  to  one  person  to 
the  use  of  another,  there  were,  before  this  statute,  other  modes  by  which 
a  use  might  be  raised  or  created,  or,  in  other  words,  by  which  a  man 
might  become  seised  of  lands  to  the  use  of  some  other  person.  Thus — 
if,  before  the  Statute  of  Uses,  a  bargain  was  made  for  the  sale  of  an 
estate,  and  the  purchase-money  paid,  but  no  feoffment  was  executed  to 
the  purchaser, — the  Court  of  Chancery,  in  analogy  to  its  modern  doc- 
trine on  the  like  occasions,(o)  considered  that  the  estate  ought  in  con- 
science immediately  to  belong  to  the  person  who  paid  the  money,  and 
therefore  held  the  bargainor  or  vendor  to  be  immediately  seised  of  the 
lands  in  question  to  the  use  of  the  purchaser.(^)  This  proper  and  equi- 
table doctrine  of  the  Court  of  Chancery  had  a  rather  curious  effect  when 
r*1841  *^e  Statute  °f  Uses  came  into  operation  ;  for  as  by  means  *of  a 
contract  of  this  kind  the  purchaser  became  entitled  to  the  use 
of  the  lands,  so,  after  the  passing  of  the  statute,  he  became  at  once 
entitled,  on  payment  of  his  purchase  money,  to  the  lawful  seisin  and 
possession  ;  or  rather,  he  was  deemed  really  to  have,  by  force  of  the 
statute,  such  seisin  and  possession,  so  far  at  least  as  it  was  possible  to 
consider  a  man  in  possession  who  in  fact  was  not.(q)     It,  consequently, 

(m)  2  Sand.  Uses  61  (74,  5th  ed.).  («)  27  Hen.  VIIT.  c.  10. 

(o)  Ante,  p.  164. 

[p)  2  Sand.  Uses  43  (53,  5th  ed.)  ;  Gilb.  Uses  and  Trusts  49  (94,  3d  ed.). 

(q)  Thus,  he  could  not  maintain  an  action  of  trespass  without  being  actually  in  pos- 
session, for  this  action  is  founded  on  the  disturbance  of  actual  possession,  which  is 
evidently  more  than  the  Statute  of  Uses,  or  any  other  statute,  can  give.  Gilb.  Uses  81 
(185,  3d  ed.)  ;  2  Fonb.  on  Equity  12  ;  Harrison  v.  Blackburn,  17  C.  B.,  N.  S.  678  (E.  C. 


OF   A    MODERN   CONVEYANCE.  184 

came  to  pass  that  the  seisin  was  thus  transferred,  from  one  person  to 
another,  by  a  mere  bargain  arid  sale,  that  is,  by  a  contract  for  sale  and 
payment  of  money,  without  the  necessity  of  a  feoffment,  or  even  of  a 
deed;(r)  and,  moreover,  an  estate  in  fee  simple  at  law  was  thus  duly  con- 
veyed from  one  person  to  another  without  the  employment  of  the  techni- 
cal word  heirs,  which  before  was  necessary  to  mark  out  the  estate  of  the 
purchaser  ;  for,  it  was  presumed  that  the  purchase-money  was  paid  for  an 
estate  in  fee  simple  ;(*)  and,  as  the  purchaser  had,  under  his  contract, 
such  an  estate  in  the  use,  he  of  course  became  entitled,  by  the  very 
words  of  the  statute,  to  the  same  estate  in  the  legal  seisin  and  possession. 

The  mischievous  results  of  the  statute,  in  this  particular,  were  quickly 
perceived.1  The  notoriety  in  the  transfer  of  estates,  on  which  the  law 
had  always  laid  so  much  stress,  was  at  once  at  an  end ;  and  it  was  per- 
ceived to  be  very  undesirable  that  so  important  a  matter  as  the  title  to 
landed  property  should  depend  on  a  mere  *verbal  bargain  and 
money  payment,  or  bargain  and  sale,  as  it  was  termed.  Shortly  L  J 
after  the  passing  of  the  Statute  of  Uses,  it  was  accordingly  required 
by  another  act  of  parliament,^)  passed  in  the  same  year,  that  every 
bargain  and  sale  of  any  estate  of  inheritance  or  freehold  should  be  made  by 
deed  indented  and  enrolled,  within  six  months  (which  means  lunar  months) 
from  the  date,  in  one  of  the  courts  of  record  at  Westminster,  or  before  the 
custos  rotulorum  and  two  justices  of  the  peace  and  the  clerk  of  the  peace 
for  the  county  in  which  the  lands  lay,  or  two  of  them  at  least,  whereof  the 
clerk  of  the  peace  should  be  one.  A  stop  was  thus  put  Xo  the  secret  con- 
veyance of  estates  by  mere  contract  and  payment  of  money.2  For  a  deed 
entered  on  the  records  of  a  court  is  of  course  open  to  public  inspection ; 
and  the  expense  of  enrolment  was,  in  some  degree,  a  counterbalance  to  the 

L.  R.  vol.  112).  See,  however,  Anon.,  Cro.  Eliz.  46;  Com.  Dig.  tit.  Uses  (I)  ;  Heelis  v. 
Blain,  18  C.  B.,  N.  S.  90  (E.  C.  L.  R.  vol.  114)  ;  Hadfield's  Case  L.  R.,  8  C.  P.  306. 

(r)  Dyer  229  a  ;  Comyn's  Digest,  tit.  Bargain  and  Sale  (B.  1,  4)  ;  Gilb.  on  Uses  and 
Trusts  87,  271  (197,  475,  3d  ed.). 

(s)  Gilb.  Uses  62  (116,  3d  ed.).  (/)  27  Hen.  VIII.  c.  16. 


1  Blackstone  says  that  the  mischief  was  625.  When,  moreover,  land  was  already 
foreseen  at  the  time  the  Statute  of  Uses  was  in  the  actual  possession  of  a  tenant,  neither 
passed.     2  Com.  338.  entry,  livery,  nor  enrolment  was  necessary, 

2  A  bargain  and  sale  without  enrolment  for  the  tenant  already  had  the  former,  and 
is,  however,  in  equity,  evidence  of  an  the  reversion,  which  lay  in  grant,  was  sus- 
agreement  to  convey,  and  the  conscience  ceptible  of  beiug  transferred  by  any  instru- 
is  bound  to  make  further  assurance,  that  ment  which  would  operate  by  way  of  grant, 
obligation  arising  from  the  payment  of  the  Doe  v.  Cole,  7  Barn.  &  Cress.  243  (E.  C.  L. 
money:    Mestaer   v.    Gillespie,    11    Vesey  R.  vol.  14).  R. 


185  OF    COR  POKE  AL    HEREDITAMENTS. 

inconvenience  of  going  to  the  lands  to  give  livery  of  seisin.  It  was  not 
long,  however,  before  a  loophole  was  discovered  in  this  latter  statute, 
through  which,  after  a  few  had  ventured  to  pass,  all  the  world  soon  fol- 
lowed. It  was  perceived  that  the  act  spoke  only  of  estates  of  inheritance 
of  freehold,  and  was  silent  as  to  bargains  and  sales  for  a  mere  term  of 
vears,  which  is  not  a  freehold.  A  bargain  and  sale  of  lands  for  a  year 
only  was  not  therefore  affected  by  the  act,(w)  but  remained  still  capable 
of  being  accomplished  by  word  of  mouth  and  payment  of  money.  The 
entry  on  the  part  of  the  tenant,  required  by  the  law,(i>)  was  supplied  by 
the  Statute  of  Uses  ;  which,  by  its  own  force,  placed  him  in  legal  intend- 
ment in  possession  for  the  same  estate  as  he  had  in  the  use,  that  is,  for 
the  term  bargained  and  sold  to  him. (a;)  And  as  any  pecuniary  payment, 
r*i  Rfil  nowevei'  small,  was  considered  sufficient  to  raise  a  use,(^/)  *it  fol- 
~  lowed  that  if  A.,  a  person  seised  in  fee  simple,  bargained  and 
sold  his  lands  to  B.  for  one  year  in  consideration  of  ten  shillings  paid  by 
B.  to  A.,  B.  became,  in  law,  at  once  possessed  of  an  estate  in  the  lands  for 
the  term  of  one  year  in  the  same  manner  as  if  he  had  actually  entered  on 
the  premises  under  a  regular  lease.  Here  then  was  an  opportunity  of 
making  a  conveyance  of  the  whole  fee  simple,  without  livery  of  seisin,  entry, 
or  enrolment.  When  the  bargain  and  sale  for  a  year  was  made,  A.  had 
simply  to  release  by  deed  to  B.  and  his  heirs  his  (A.'s)  estate  and  interest 
in  the  premises,  and  B.  became  at  once  seised  of  the  lands  for  an  estate  in 
fee  simple.  This  bargain  and  sale  for  a  year,  followed  by  a  release,  is  the 
modern  conveyance  by  lease  and  release — a  method  which  was  first  practiced 
by  Sir  Francis  Moore,  Serjeant  at  law,  at  the  request,  it  is  said,  of  Lord 
Norris,  in  order  that  some  of  his  relations  might  not  know  what  convey- 
ance or  settlement  he  should  make  of  his  estate  5(2)  and  although  the 
efficiency  of  this  method  was  at  first  doubted, (a)1  it  was,  for  more  than 

(m)  Gilb.  Uses  98,  296  (214,  502,  3d  ed.)  ;  2  Sand.  Uses  63  (75,  5th  ed.). 
(v)  Ante,  p.  181.  (x)  Gilb.  Uses  104  (223,  3d  ed.). 

(y)  2  Sand.  Uses  47  (57,  5th  ed.).  '    (z)  2  Prest,  Conv.  219. 

(a)  Sugd.  note  to  Gilb.  Uses,  p.  328  :  2  Prest.  Conv.  231  ;  2  Fonb.  Eq.  12. 

1  These  doubts  arose  from  confusing  the  if  a  lease  for  years  was  made  upon  a  valua- 

operations    of    a   lease    at    common    law,  ble  consideration,  a  release  might  operate 

which  required  entry  to  give  effect  to  it,  upon  that  without  an  actual  entry  of  the 

and  a  lease  for  a  valuable  consideration  lessee,  because  the  statute  did  execute  the 

which  operated  under  the  statute  by  way  lease,  and  raised  an  use  presently  to  the 

of  bargain  and  sale,  and  raised  a  use  in  the  lessee.    .    .    .    The  case  put  by  Littleton, 

lessee  which  the  statute   executed.     This  in  sect.  459,  is  put  at  the  common  law  and 

was    thus   explained    by  Ch.  J.   North,   in  not  upon  the  statute,  where  he  saith  that 

Baker  v.  Keate,  2  Modern  -  19  :   •■  After  the  if  a  lease  be  made  for  years,  and  the  lessor 

Statute  of  Uses,  it  became  an  opinion  that  releaseth  all  his  right  to  the  lessee,  entry 


OF   A    MODERN    CONVEYANCE. 


186 


two  centuries,  the  common  means  of  conveying  lands  in  this  country.     It 
will  be  observed  that  the  bargain  and  sale  (or  lease,  as  it  is  called)  for  a 
year  derived  its  effect  from  the  Statute  of  Uses ;   the  release  was  quite 
independent  of  that  statute,  having  existed  long  before,  and  being  as 
ancient  as  the  common  law  itself. (6)     The  Statute  of  Uses  was  employed 
in  the  conveyance  by  lease  and  release  only  for  the  purpose  of  giving  to 
the  intended  releasee,  without  his  actually  entering  on  the  lands,  such  an 
estate  as  would  enable  him  to  receive  the  release.     When  this  estate  for 
one  year  was  obtained  by  the  lease,  the  Statute  of  Uses  had  performed  its 
part,  and  the  fee  simple  was  conveyed  to  the  releasee  by  the  release  alone. 
The  release  would,  *before  the  Statute  of  Uses,  have  conveyed    p187-. 
the  fee  simple  to  the  releasee,  supposing  him  to  have  obtained  that 
possession  for  one  year,  which,  after  the  statute,  was  given  him  by  the 
lease.     After  the  passing  of  the  Statute  of  Frauds,(c)  it  became  neces- 
sary that  every  bargain  and  sale  of  lands  for  a  year  should  be  put  into 
writing,  as  no  pecuniary  rent  was  ever  reserved,  the  consideration  being 
usually  five  shillings,  the  receipt  of  which  was  acknowledged,  though  in 
fact  it  was  never  paid.     And  the  bargain  and  sale,  or  lease  for  a  year, 
was  usually  made  by  deed,  though  this  was  not  absolutely  necessary. 
It  was  generally  dated  the  day  before  the  date  of  the  release,  though 
executed  on  the  same  day  as  the  release,  immediately  before  the  execu- 
tion of  the  latter.1 


(b)  Sugd.  note  to  Gilb.  Uses  229. 


and  release  is  void,  because  the  lessee  had 
only  the  right  and  not  the  possession, 
which  my  Lord  Coke,  in  his  comment  upon 
it,  calls  an  interesse  termini,  and  that  such 
release  shall  not  enure  to  enlarge  the 
estate  without  the  possession,  which  is 
very  true  at  the  common  law,  but  not  upon 
the  Statute  of  Uses."  R- 

1  The  objection  in  England  to  the  no- 
toriety of  the  enrolment  of  deeds  of  bar- 
gain and  sale  has  no  force  where,  as  in  all 
the  United  States,  a  registry  of  all  deeds 
is  established,  which  is,  moreover,  compar- 
atively inexpensive  by  reason  of  the  entire 
absence  of  the  system  complained  of  by 
the  author,  infra,  at  page  198,  viz.,  that  of 
remunerating  the  draftsman  according  to 
the  number  of  words  in  the  instrument. 

It  would  seem  that  the  Statute  of  Enrol- 
ment itself,  which,  on  its  face,  applied  ex- 
clusively to  lands  within  the  realm  of  Eng- 


(c)  Stat.  29  Car.  II.  c.  3  ;  ante,  p.  151. 

land,  was  not  considered  to  apply  to  the 
American  Colonies.  It  certainly  was  not 
in  Massachusetts,  Welch  v.  Foster,  12  Mass. 

96  ;  in  Pennsylvania,  Report  of  the  Judges 
on  British  statutes,  3  Binney  ;  or  in  New 
York,  Jackson  v.  Dunsbagh,  1  Johns.  Cases 

97  ;  and  probably  in  none  of  them.  In  the 
latter  State,  however,  conveyance  by  lease 
and  release  was  universal  until  the  year 
1778  when  "the  revision  of  the  statute 
laws  of  the  State  at  that  period,  which  re- 
enacted  all  the  English  statute  law  deemed 
proper  and  applicable,  and  which  repealed 
the  British  statutes  in  force  in  New  York 
while  it  was  a  colony,  removed  all  appre- 
hension of  the  necessity  of  enrolment  of 
deeds  of  bargain  and  sale,  and  left  that 
short,  plain  and  excellent  mode  of  convey- 
ance to  its  free  operation.  The  conse- 
quence was,  that  the  conveyance  by  lease 
and  release,  which  required  two  deeds,  or 


187 


OF    CORPOREAL   HEREDITAMENTS. 


This  cumbrous  contrivance  of  two  deeds  to  every  purchase  continued 
in  constant  use  down  to  the  year  1841,  when  the  act  was  passed  to  which 
we  have  before  referred,(d)  intituled  "  An  Act  for  rendering  a  Release 
as  effectual  for  the  Conveyance  of  Freehold  Estates  as  a  Lease  and 
Release  by  the  same  Parties."  This  act  enacts  that  every  deed  or  instru- 
ment of  release  of  a  freehold  estate,  or  purporting  or  intended  to  be  so, 
which  shall  be  expressed  to  be  made  in  pursuance  of  the  act,  shall  be  as 
effectual,  and  shall  take  effect  as  a  conveyance  to  uses  or  otherwise,  and 
shall  operate  in  all  respects,  as  if  the  releasing  party  or  parties,  who 
shall  have  executed  the  same,  had  also  executed,  in  due  form,  a  deed  or 
instrument  of  bargain  and  sale,  or  lease  for  a  year,  for  giving  effect  to 

(d)  Stat.  4  &  5  Vict.  c.  21  ;  ante,  p.  180. 


instruments,  instead  of  one,  fell  immedi- 
ately into  total  disuse:"  4  Kent's  Com. 
494  ;  but  since  the  Revised  Statutes  of  1830, 
the  conveyances  are  made  by  grant  simply. 
In  Pennsylvania,  a?  early  as  1715,  the  act 
which  established  a  registry  of  deeds  pro- 
vided that  all  deeds  or  conveyances  made, 
or  to  be  made,  and  proved,  or  acknowledged 
and  recorded  according  to  its  provisions, 
should  be  of  the  same  force  and  effect  for 
the  giving  possession  and  seisin,  and 
making  good  the  title  and  assurance  of 
the  lands,  as  deeds  of  feoffment,  with 
livery  of  seisin,  or  deeds  enrolled  in  any 
of  the  king's  courts  of  record  at  Westmin- 
ster, were  or  should  be  in  Great  Britain  : 
and  statutes  of  similar  import  were,  it  is 
believed,  enacted  also  in  other  States. 
Higbee  v.  Rice,  5  Mass.  3.44  ;  Emery  v. 
Chase,  5  Greenleaf  252  ;  Barrett  v.  French, 
1  Connecticut  554  ;  Mr.  Hare's  note  to  Roe 
v.  Trammar,  2  Smith's  Lead.  Cases  453. 

These  statutes  neither  excluded  the  ope- 
ration of  the  Statute  of  Uses  or  the  com- 
mon law.  Thus,  as  in  Pennsylvania,  the 
Statute  of  Enrolments  was  not  in  force, 
and  the  Statute  of  Uses  was  in  force,  a 
valid  estate  of  freehold  was  created  by 
deed  of  bargain  and  sale,  although  not 
recorded,  precisely  as  it  was  in  England 
before  the  Statute  of  Enrolments  was 
passed  ;  and  the  principal  use  of  the  act 
of  1715,  as  of  the  other  local  acts  referred 
to,  is,  as  enabling  statutes,  to  give  effect  to 
the  intention  of  the  parties  in  cases  where, 


but  for  their  aid,  that  intention  might  be 
defeated.  See  Mr.  Hare's  note,  supra.  It 
is  a  familiar  principle,  and  one  of  equal 
application  on  both  sides  of  the  Atlantic, 
that  the  law  looks  to  the  end  had  in  view 
by  the  parties,  and  if  the  intent  appear, 
the  words  will  be  construed  in  such  a 
sense  as  to  perform  that  intent  rather  than 
in  any  other  sense.  Plowden  154.  Thus 
a  conveyance  taking  effect  by  virtue  of  the 
Statute  of  Uses  requires  a  consideration: 
Ward  v.  Lambert,  Cro.  Eliz.  394  ;  where 
the  latter  does  not  appear,  it  may  be 
supplied  by  parol  evidence:  Spring  v. 
Hawkes,  5  Iredell  30  ;  Jackson  v.  Pike,  9 
Cowen  69;  White  v.  Weeks,  1  Penn.  486; 
but  where  it  exists,  any  words  which  may 
denote  the  intention  of  the  parties  will  be 
deemed  sufficient  to  raise  a  use,  which  the 
statute  then  executes.  Thus  the  words 
"  bargain  and  sale"  are  not  necessary,  but 
"  alien  and  grant,"  or  "  demise  and  grant :" 
Fox's  Case,  8  Coke  86;  2  Inst.  672;  "re- 
mise, release,  and  quit  claim  :•"  Jackson 
v.  Fish,  10  Johns.  456;  "make  over  or 
grant:"  Jackson  v.  Alexander,  3  Id.  484; 
"convey:"  Patterson  v.  Carneal,  3  A.  K. 
Marsh.  618  ;  "  quit :"  Gordon  v.  Haywood, 
2  N.  Hamp.  402  ;  or  "  let :"  Krider  v.  Laf- 
ferty,  1  Wharton  316,  are  all  of  them 
equally  effective,  provided,  of  course, 
proper  words  of  limitation  be  used  to  show 
the  quantity  of  estate  intended  to  be  passed, 
whether  a  fee,  a  life  estate,  or  the  like. 

R. 


OF    A    MODERN    CONVEYANCE.  187 

such  release,  although  no  such  deed  or  instrument  of  bargain  and  sale,  or 
lease  for  a  year,  shall  be  executed.  And  now,  by  the  act  to  amend  the 
law  of  real  property,(e)  a  deed  of  grant  is  *alone  sufficient  for  piggl 
the  conveyance  of  all  corporeal  hereditaments. 

The  legal  seisin  being  thus  capable  of  being  transferred  by  a  deed  of 
grant,  there  is  the  same  necessity  now  as  there  was  when  a  feoffment  was 
employed,  that  the  estate  which  the  purchaser  is  to  take  should  be  marked 
out.(f)  If  he  has  purchased  an  estate  in  fee  simple,  the  conveyance 
must  be  expressed  to  be  made  to  him  and  his  heirs  ;  for  the  construction 
of  all  conveyances,  wills  only  excepted,  is  in  this  respect  the  same ;  and 
a  conveyance  to  the  purchaser  simply,  without  these  words,  would  merely 
convey  to  him  an  estate  for  his  life,  as  in  the  case  of  a  feoffment.(#)  In 
this  case  also,  as  well  as  in  a  feoffment,  it  is  the  better  opinion  that,  in 
order  to  give  permanent  validity  to  the  conveyance,  it  is  necessary  either 
that  a  consideration  should  be  expressed  in  the  conveyance,  or  that 
it  should  be  made  to  the  use  of  the  purchaser  as  well  as  unto  him  :(h)  for  a 
lease  and  release  was  formerly,  and  a  deed  of  grant  is  now,  as  much  an 
established  conveyance  as  a  feoffment;  and  the  rule  was,  before  the 
Statute  of  Uses,  that  any  conveyance,  and  not  a  feoffment  particularly, 
made  to  another  without  any  consideration,  or  any  declaration  of  uses, 
should  be  deemed  to  be  made  to  the  use  of  the  party  conveying.  In 
order,  therefore,  to  avoid  any  such  construction,  and  so  to  prevent  the 
Statute  of  Uses  from  immediately  undoing  all  that  has  been  done,  it  is 
usual  to  express,  in  every  conveyance,  that  the  purchaser  shall  hold,  not 
only  unto,  but  unto  and  to  the  use  of  himself  and  his  heirs. 

A  conveyance  might  also  have  been  made  by  lease  or  release,  as  well 
as  by  a  feoffment,  to  one  person  and  *his  heirs,  to  the  use  of  pigcn 
some  other  person  and  his  heirs  ;  and  in  this  case,  as  in  a  similar 
feoffment,  the  latter  person  took  at  once  the  whole  fee  simple,  the  former 
being  made,  by  the  Statute  of  Uses,  merely  a  conduit-pipe  for  conveying 
the  estate  to  him.(i)  This  extraordinary  result  of  the  Statute  of  Uses  is 
continually  relied  on  in  modern  conveyancing  ;*  and  it  may  now  be 
accomplished  by  a  deed  of  grant  in  the  same  manner  as  it  might  have 

(e)  Stat.  8  &  9  Vict.  c.  106  ;   ante,  p.  181.         (/)  Shep.  Touch.  327  ;  see  ante,  p.  143. 
(g)  Shep.  Touch,  ubi  supra. 

(h)  2   Sand.  Uses   64-69   (77-84,  5th   ed.) ;  Sugd.  note  to  Gilb.  Uses  233;  see  ante, 
pp.  147,  157,  158. 
(i)  See  ante,  p.  158. 

1  Most  frequently,  perhaps,  in  deeds  of  partition  ;  see  ante,  p.  158,  n.    M. 


189  OF    CORPOREAL    HEREDITAMENTS. 

been  before  effected  by  a  lease  and  release.  It  is  found  particularly 
advantageous  as  a  means  for  avoiding  a  rule  of  law  that  a  man  cannot 
make  any  conveyance  to  himself;  thus  if  it  were  wished  to  make  a  con- 
veyance of  lands  from  A.,  a  person  solely  seised,  to  A.  and  B.  jointly, 
this  operation  could  not,  before  the  Statute  of  Uses,  have  been  effected 
by  less  than  two  conveyances ;  for  a  conveyance  from  A.  directly  to  A. 
and  B.  would  pass  the  whole  estate  solely  to  B.(j')  It  would,  therefore, 
have  been  requisite  for  A.  to  make  a  conveyance  to  a  third  person,  and 
for  such  person  then  to  reconvey  to  A.  and  B.  jointly.  And  this  was 
the  method  actually  adopted,  under  similar  circumstances,  with  respect 
to  leasehold  estates  and  personal  property,  which  are  not  affected  by  the 
Statute  of  Uses,  until  an  act  was  passed  by  which  any  person  may  now 
assign  leasehold  or  personal  property  to  himself  jointly  with  another  ;(k) 
but  this  act  does  not  extend  to  freeholds.  If  the  estate  be  freehold,  A. 
must  convey  to  B.  and  his  heirs,  to  the  use  of  A.  and  B.  and  their 
heirs ;  and  a  joint  estate  in  fee  simple  will  immediately  vest  in  them 
both.  Suppose,  again,  a  person  should  wish  to  convey  a  freehold  estate 
to  another,  reserving  to  himself  a  life  interest, — without  the  aid  of  the 
Statute  of  Uses  he  would  be  unable  to  accomplish  this  result  by  a  single 
r*i  qm  *deed.(Z)  But,  by  means  of  the  statute,  he  may  now  make  a  con- 
veyance of  the  property  to  the  other  and  his  heirs,  to  the  use  of 
himself  (the  conveying  party)  for  his  life,  and  from  and  immediately 
after  his  decease,  to  the  use  of  the  other  and  his  heirs  and  assigns.  By 
this  means  the  conveying  party  will  at  once  become  seised  of  an  estate 
only  for  his  life,  and  after  his  decease  an  estate  in  fee  simple  will  remain 
for  the  other. 

The  reader  will  now  be  in  a  situation  to  understand  an  ordinary  pur- 
chase deed  of  the  simplest  kind,  with  a  specimen  of  which  he  is  accord- 
ingly presented:  — "THIS  INDENTURE(m)  made  the  first  day  of 
"  January  18461  between   A.  B.  of  Cheapside  in  the  city  of  London 

(y)  Perkins,  s.  203.     So  a  man  cannot  covenant  to  pay  money  to  himself  and  another 
on  a  joint  account,  Faulkner  v.  Lowe,  2  Ex.  Rep.  595. 
(k)  Stat.  22  &  23  Vict.  c.  35,  s.  21. 

(1)  Perk.  ss.  704,  705  ;  Youle  v.  Jones,  13  Mee.  &  Wels.  534. 
(m)  Ante,  p.  150. 

1  Anciently   deeds  were  not  dated  (Co.  day   on  which  it  bears   date.     Pringle  v- 

Litt.  0  a ;  Shep.  Touchs.  52,  55),  and  now  Pringle,   9   P.   F.   Smith   281;   Jackson  v. 

a  date  is  not  essential,  but  it  is  the  com-  Hill,  5  Wend.  532;   People  v.  Snyder,  41 

mon  practice  to  insert  one.     The  presump-  N.  Y.  402  ;  Ellsworth  v.  R.  R.  Co.,  34  N. 

tion  is  that  the  deed  was  delivered  on  the  J.,  L.  93;  Blake  v.  Fash,  44111.  302  ;  Darst 


OF   A    MODERN    CONVEYANCE. 


190 


"  esquire  of  the  one  part  and  C.  D.  of  Lincoln's  Inn  in  the  county  of 
"Middlesex  esquire  of  the  other  part  Whereas  by  indentures  of  lease 
»  and  release(w)  bearing  date  respectively  the  first  and  second  days  of 
"  January  1838  and  respectively  made  between  E.  F.  of  the  one  part 
"and  the  said  A.  B.  of  the  other  part  for  the  consideration  therein 
«  mentioned  the  messuage  lands  and  hereditaments  hereinafter  described 
"  with  the  appurtenances  were  conveyed  unto  and  to  the  use  of  the  said 
"  A.  B.  his  heirs  and  assigns  for  ever1     And  whereas  the  said  A.  B. 
«  hath  contracted  with  the  said  C.  D.  for  the  absolute  sale  to  him  of  the 
"  inheritance  in  fee  simple(o)  in  possession  of  and  in  the  said  messuage 
Mauds  and  hereditaments  with  the  appurtenances  free  from  all  incum- 
"  brances  for  the  sum  of  one  thousand  pounds2  Now  this  Indenture 
"  WITNESSETH  that  in  pursuance  of  the  said  contract  and  in  consideration 
"of  the  sum  of  one  thousand  pounds  of  lawful  money  of  Great  Britain 
"to  the  said  A.  B.  in  hand  paid  by  the  *said  C.  D.  upon  or 
"  before  the  execution  of  these  presents  (the  receipt  of  which 
"  said  sum  of  one  thousand  pounds  in  full  for  the  absolute  purchase  of 
"  the  inheritance  in  fee  simple  in   possession  of  and  in   the  messuage 
"lands  and  hereditaments  herein  before  referred  to  and  hereinafter  de- 


(n)  Ante,  p.  1£ 


(o)  Ante,  pp.  60,  et  seq. 


v.  Bates,    51    111.    439;    Henry   County    v. 
Bradshaw,  20  Iowa  355.     But  tbis  is  only 
prima  facie,  and  may  be  rebutted  by  proof 
of  anotber  date.     Hall  v.  Benner,  1  Pen.  & 
Watts  402  ;  Sweetser  v.  Lowell,  33  Maine 
446;  Harris  v.  Norton,  16  Barb.  264;  Ford 
v.  Gregory,   10  B.  Monr.   175;  Banning  v. 
Edes,   6  Minn.    402  ;    Swan  v.    Hodges,   3 
Head  254.    In  most  of  the  States  there  are 
statutes  more  or  less  nearly  resembling  the 
British  Lord's  Day  Act  (29  Car.  II.  c.  7),  and 
under  these  statutes   executory  contracts 
made  on  Sunday  are  generally  held  to  be 
void.     But  a  conveyance  of  land  is  an  exe- 
cuted contract,  and  while  the  courts  will 
not  lend   their  aid  to  enforce  a  contract 
made  in  violation  of  a  statute,  they  will 
not  interfere  to  undo  that  which  has  been 
completely  done.    Consequently  it  has  been 
held  that  a  deed   dated   and   delivered  on 
Sunday  is  valid  to  pass  the  title.     Swisher 
v.  Williams,  Wright  (Ohio)  754;  Shuman 
v.  Shuman,  3  Casey  90. 

1  This  recital  of  the  conveyance  to  the 


vendor  is,  it  is  believed,  unusual  on  this 
side  of  the  Atlantic,  as  thus  introduced. 
When  the  vendor  merely  claims,  as  in  the 
form  given  in  the  text,  under  a  direct  con- 
veyance to  himself,  this  is  generally  thus 
recited  at  the  end  of  the  description  of  the 
property  :  "  being  the  same  premises  which 
A.  B.,  by  indenture  dated,  &c,  recorded, 
&c,    granted    and    conveyed    to    the    said 
(vendor)  and  his  heirs."     Where,  however, 
the  vendor  does  not  thus  claim,  as  where 
there  have  been,  since  the  last  conveyance, 
devises,  descents,  changes  of  trustees,  &c, 
or  alterations  of  the  property,  as  by  the 
opening  of  streets,  or  the  like,  these  are 
usually  recited  in  well-drawn  instruments, 
with  more  or  les3  particularity,  immedi- 
ately after  the  date  and  the  parties.    Some- 
times   the  whole   title  from    the    original 
patent  is  recited.  R- 

2  This  recital  of  the  contract  between 
the  parties  is  believed  to  be  unusual  in 
American  conveyancing,  unless  it  may  be 
for  a  particular  purpose.  R. 


191  OF    CORPOREAL    HEREDITAMENTS. 

"  scribed  with  the  appurtenance  he  the  said  A.  B.  doth  hereby  ac- 
"  knowledge  and  from  the  same  doth  release  the  said  C.  D.  his  heirs 
"  executors  administrators  and  assigns)  He  the  said  A.  B.  doth  by 
"these  presents  grant(^)  unto  the  said  C.  D.  and  his  heirs  all  that 
"  messuage  or  tenement  [here  describe  the  premises]  Together  with  all 
"  outhouses  ways  watercourses  trees  commonable  rights  easements  and 
"  appurtenances  to  the  said  messuage  lands  hereditaments  and  premises^) 
"hereby  granted  or  any  of  them  belonging  or  therewith  used  or  enjoyed 
"  And  all  the  estate(r)  and  right  of  the  said  A.  B.  in  and  to  the  same 
"To  have  AND  TO  hold  the  said  messuage  lands  hereditaments  and 
"  premises  intended  to  be  hereby  granted  with  the  appurtenances  unto 
"  and  to  the  use  of(s)x  the  said  C.  D.  his  heirs  and  assign  for  ever."(t) 
[Then  folloiv  covenants  by  the  vendor  with  the  purchaser  for  the  title; 
that  is,  that  he  has  good  rigid  to  convey  the  premises,  for  their  quiet  en- 
joyment by  the  purchaser,  and  freedom  from  incumbrances,  and  that  the 
vendor  and  his  heirs  ivill  make  all  such  further  conveyances  as  may  be 
reasonably  required.^1  "  In  witness  whereof  the  said  parties  to  these 
"  presents  have  hereunto  set  their  hands  and  seals  the  day  and  year 
"first  above  written.'"3  To  the  foot  of  the  deed  are  appended  the  seals 
and  signatures  of  the  parties  ;(u)  and  on  the  back  is  indorsed  a  further 
r*1Q91  receipt  for  the  *purchase-money,(rc)  also  an  attestation  by  the 
witnesses,  of  whom  it  is  very  desirable  that  there  should  be  two, 

(p)  Ante,  pp.  181,  187.  (q)  Ante,  p.  14. 

(r)  Ante,  p.  17.  (s)  Ante,  p.  187. 

(t)  Ante,  pp.  146,  187.  (u)  Ante,  p.  152. 

(x)  This  practice  is  of  comparatively  modern  date.     See   2  Atkyns  478;  3  Atk.  112; 
2  Sand.  Uses  305,  n.  A.  (118,  n.,  5th  ed.)  ;  3  Preston's  Abstracts  15. 

1  This  is  rather  more  clumsily  expressed  much  brevity.  This  will  be  more  particu- 
in  our  deeds,  the  phrase  generally  being  larly  noticed  in  the  last  chapter.  R. 
"to  have  and  to  hold  unto  the  said  A.  B.,  3  The  form  of  ordinary  purchase  deeds 
his  heirs  and  assigns,  to  and  for  the  only  in  the  United  States  differs  little  from 
proper  use  and  behoof  of  him,  the  said  A.  that  given  in  the  text,  further  than  has 
B.,  his  heirs  and  assigns  forever."         R.  been  already  noticed.     The  receipt  for  the 

2  These  covenants  for  title  thus  alluded  consideration-money  is    more    briefly  ex- 
to  generally  occupy  more  than  the  half  of  pressed,  generally:  "for  and  in  consider- 

an  ordinary  purchase    deed  in    England:  ation  of  ,  to  him  paid  by  the  said 

see  Appendix  B;  and  as  the  author  says,  party  of  the  second  part,  before  the  seal- 

infru,    p.    447,   "  few    conveyancing   forms  ing    and     delivery     hereof,    the     receipt 

can  exceed  them   in  the  luxuriant  growth  whereof  is    hereby    acknowledged,''    and 

to    which    their   verbiage  has  extended."  the  operative  words  are  generally,  "  doth 

On    this  side  of  the  Atlantic,  not   unfre-  grant,  bargain,  sell  (for  the  effect  of  these 

quently,  only  the  covenant  of  warranty  is  in  the  creation  of  covenants  by  implica- 

employed,  and  even  where  all  the  cove-  tion,  see  the  last  chapter),  alien,  enfeoff, 

nants  for  title  are   introduced,  it  is  with  release,  and  confirm  unto,"  &c.  R. 


OF   A    MODERN    CONVEYANCE. 


192 


though  the  deed  would  not  be  void  even  without  any^?/)1  On  the  face 
of  the  deed  will  be  observed  the  proper  stamps,  without  which  it  could 
not  formerly  have  been  admitted  as  evidence. (zf  But  the  Common  Law 
Procedure  Act,  1854,(a)  provided  that,  upon  payment  to  the  proper 
officer  of  the  court  of  the  stamp  duty,  and  certain  penalties,  any  deed 
or  other  document   should   be   admissible   in  evidence,  saving   all  just 

0)  2  Black.  Com.  307,  378.  (z)  Ibid.  297. 

(a)  Stat.  17  &  18  Vict.  c.  125,  s.  29,  now  repealed  by  stat.  33  &  34  Vict.  c.  99. 


1  The  common-law  rule  which  did  not 
require  attesting  witnesses  to  a  deed  is 
recognized  in  the  United  States,  but  is  in 
many  of  them  altered  by  statute  ;  these 
are  referred  to  in  Greenleaf's  Cruise,  vol. 
iv.,  p.  31,  n.  An  important  circumstance 
in  the  validity  of  American  deeds  is  their 
acknowledgment  by  the  grantor  before  a 
magistrate  or  other  person  in  authority, 
the  effect  of  which  acknowledgment  Mr. 
Greenleaf  considers  is  regarded  in  three 
different  points  of  view  in  different  States, 
viz.:  1.  Those  in  which  the  acknowledg- 
ment is  regarded  merely  as  evidence  to 
the  Register  that  it  is  the  deed  of  the 
party,  and  therefore  entitled  to  registra- 
tion as  such.  2.  Those  in  which  the  ac- 
knowledgment is  received  as  a  solemn 
admission  of  the  fact  of  the  execution  of 
the  deed,  so  as  to  dispense  with  the  form- 
ality of  attesting  witnesses  to  its  execu- 
tion, which  is  otherwise  required  in  order 
to  render  it  a  valid  conveyance ;  and, 
3.  Those  in  which  it  is  received  prima 
facie  as  a  substitution  for  any  other  proof 
of  the  formal  execution  of  the  deed,  and 
entitles  it  to  be  read  in  evidence.  R. 

2  By  act  of  Congress  of  June  30,  18G4, 
every  deed,  instrument,  or  writing  whereby 
any  lands,  tenements,  or  other  realty  sold 
shall  be  granted,  assigned,  transferred,  or 
otherwise  conveyed  to  or  vested  in  the 
purchaser,  or  any  other  person  or  persons 
by  his  direction,  is  subject  to  a  stamp 
duty  of  fifty  cents  for  each  five  hundred 
dollars  or  fraction  thereof,  of  the  consider- 
ation or  value.  2  Brightly's  Digest  371. 
Without  the  proper  stamp  no  such  deed  or 
instrument  can  lawfully  be  recorded,  and 


the  record  shall  be  utterly  void,  and  not 
admissible  in  evidence.  Id.  Such  stamp 
shall  be  cancelled  by  the  person  using  or 
affixing  it  writing  his  initials  thereon,  and 
the  date  upon  which  it  is  used.  Id.  372. 
Under  this  act  it  has  been  held  that  the 
grantor  is  liable  for  the  price  of  the  stamp, 
it  being  his  duty  to  affix  it  in  order  to 
complete  his  deed.  Callaghan  v.  McCredy, 
12  Wright  (Penn.)  463. 

The  power  of  Congress,  however,  to 
prohibit  a  deed  from  being  given  in  evi- 
dence in  a  State  court  unless  stamped  has 
been  considered  of  very  doubtful  consti- 
tutionality, and  this  provision  has  been 
decided  to  apply  only  to  the  courts  of  the 
United  States.  Carpenter  v.  Snelling,  97 
Mass.  452;  Weltner  v.  Riggs,  3  W.  Va. 
445  ;  Craig  v.  Dimock,  9  Int.  Rev.  Rec. 
127.  But  control,  Barney  v.  Ivins,  22  Iowa 
163;  Howe  v.  Carpenter,  53  Barb.  385. 

By  the  act  of  March  3,  1865,  any  person 
making  or  issuing  an  unstamped  deed  or 
other  instrument  of  writing  is  liable  to  a 
penalty  of  fifty  dollars,  and  the  instru- 
ment shall  be  deemed  invalid  and  of  no 
effect.  But  the  title  of  a  purchaser  of 
land,  by  deed  duly  stamped,  is  not  affected 
by  the  want  of  a  proper  stamp  on  any 
deed  conveying  such  land  by  any  person 
from  or  through  whom  his  grantor  claims 
or  holds  title.  And  provision  is  made  for 
affixing  stamps  on  instruments  subse- 
quently to  their  execution,  on  payment 
of  the  penalty,  &c.  2  Brightly's  Dig. 
372-3.  M. 

See  supra,  p.  150,  n.  1,  for  the  law  abol- 
ishing stamp-duties  on  deeds  in  the  United 
States. 


192 


OF    CORPOREAL    HEREDITAMENTS. 


exceptions  on  other  grounds.  And  a  similar  provision  is  contained  in 
the  Stamp  Act,  1870,(6)  by  which  the  stamp  duties  on  deeds  have  now 
been  consolidated.  Purchase  deeds  are  now  subject  to  ad  valorem 
stamps  of  one-half  per  cent.,  or  five  shillings  per  fifty  pounds  on  the 
amount  or  value  of  the  consideration  for  the  sale,  according  to  the  table 
r*icm  Delow-(c)  There  was  formerly  a  further  progressive  *duty  of 
L  10s.  for  every  entire  quantity  of  1080  words  over  and  above  the 
first  1080,  unless  the  ad  valorem  duty  was  less  than  10s.,  in  which  case 
the  progressive  duty  was  equal  to  the  amount  of  the  ad  valorem  duty.(d) 
The  present  scale  of  ad  valorem  duties  was  first  imposed  by  the  Act  to 
amend  the  Laws  relating  to  the  Inland  Revenue,(e)  which  was  passed  on 
the  5th  of  July,  1865.  Before  this  act  the  table  of  stamp  duties 
advanced  in  a  slightly  different  manner  by  less  minute  steps. (/)  These 
duties  again  did  not  apply  to  any  deed  or  instrument  signed  or  executed 
by  any  party  thereto,  or  bearing  date,  before  or  upon  the  10th  of 
October,  1850.  Such  a  deed,  unless  preceded  by  a  lease  for  a  year, 
bears  the  same  stamp  duty  as  the  lease  for  a  year  was  subject  to,  and 

(b)  Stat.  33  &  34  Vict.  c.  97,  s.  16.  This  act  came  into  operation  on  the  1st  of  Jan- 
uary, 1871.  The  penalties  are  10Z.,  and  also  by  way  of  further  penalty,  where  the 
unpaid  duty  exceeds  101 ,  interest  on  such  duty  at  the  rate  of  U.  per  cent,  per  annum 
from  the  day  upon  which  the  instrument  was  first  executed  up  to  the  time  when  such 
interest  is  equal  in  amount  to  the  unpaid  duty,  also  a  further  sum  of  11. 


£5 


Vhere 

the  amount 

or 

value 

of  th< 

considerate 

Exceeds 

£5  an 

d  does 

not  exceed 

£10 

u 

10 

u 

15 

11 

15 

ii 

20 

11 

20 

u 

25 

(( 

25 

ii 

50 

U 
11 

50 
75 

it 

75 
100 

<i 

100 

1! 

125 

n 

125 

11 

150 

it 

150 

11 

175 

it 

175 

11 

200 

ti 

200 

11 

225 

a 

225 

11 

250 

u 

250 

If 

275 

u 

275 

11 

300 

u 

300 

on  for  th 

e  sale  does  not  exceed 

£0     0     6 

0     1     0 

0     1     6 

0     2     0 

0     2     6 

0     5     0 

0     7     6 

0   10     0 

0   12     6 

0   15     0 

0   17     6 

1      0     0 

12     6 

1      5     0 

1      7     6 

1    10     0 

For  every  £50,  and  also  for  any  fractional  part  of  £50,  of  such 

amount  or  value  .  .  .  .  .  .  .  .  0     5     0 

(d)  Stat.  13  &  14  Vict.  c.  97,  schedule,  title  "Progressive  Duties,"  now  repealed  by 
stat.  33  &  34  Vict.  c.  99. 

(e)  Stat.  28  &  29  Vict.  c.  96. 

(/)  Stat.  13  &  14  Vict.  c.  97,  schedule,  title  "Conveyance." 


OF   A    iMODERN    CONVEYANCE. 


193 


also,  whether  so  preceded  or  not,  an  ad  valorem  duty  according  to  the 
table  stated  below. (g) 

*If  the  premises  should  be  situate  in  either  of  the  counties  of  r*-i  94-1 
Middlesex  or  York,  or  in  the  town  and  county  of  Kingston-upon- 
Hull,  a  memorandum  will  or  ought  to  be  found  indorsed,  to  the  effect 
that  a  memorial  of  the  deed  was  duly  registered  on  such  a  day,  in  such  a 
book  and  page  of  the  register,  established  by  act  of  parliament,  for  the 
county  of  Middlesex, (h)  or  the  ridings  of  York,  or  the  town  of  Kingston- 
upon-Hull.(z')  Under  these  acts,  all  deeds  are  to  be  adjudged  fraudulent 
and  void  against  any  subsequent  purchaser  or  mortgagee  for  valuable 

(g)  Where    the    purchase    or    consideration    money    therein    expressed    shall    not 


amount  to  £20. 

Amount  to 


£0  10 


£50 

150 

300 

500 

750 

1000 

2000 

3000 

4000 

5000 

6000 

7000 

8000 

9000 

10,000 

12,500 

15,000 

20,000 

30,000 

40,000 

50,000 

60,000 

80,000 

100,000 

or  upwards 

And  for  every  entire    quantity  of  1080  words  contained    therein 
over   and    above    the    first    1080    words,    a  further   progressive 
duty  of  .  .  .  .  .  .  .  .  •  •  ..£10 

See  stats.  55  Geo.  III.  c.  184,  4   &   5   Vict.  c.  21,  7  &  8  Vict.  c.  76,  and  8  &  9  Vict.  c. 
106.     The  earlier  stamp  acts   are  stat.  44  Geo.  III.  c.  98,  and  48  Geo.  III.  c.  149,  the 
latter  of  which  statutes  first  imposed  an  ad  valorem  duty  on  purchase  deeds. 
(h)  Stat.  7  Anne,  c.  20. 

(i)  Stat.  2  &  3  Anne,  c.  4,  5  Anne,  c.  18,  for  the  west  riding  ;  stat.  6  Anne,  c.  35, 
for  the  east  riding  and  Kingston-upon-Hull ;  and  stat.  8  Geo.  II.  c.  6,  for  the  north 
riding.     The  deeds  must  be  first  duly  stamped.     Stat.  33  &  34  Vict.  c.  97,  s.  22. 


£20  and  not  to 

50 

a 

150 

K 

300 

u 

500 

a 

750 

u 

1000 

u 

2000 

(1 

3000 

u 

4000 

a 

5000 

it 

6000 

it 

7000 

it 

8000 

a 

9000 

it 

10,000 

tt 

12,500 

a 

15,000 

tt 

20,000 

it 

30,000 

it 

40,000 

tt 

50,000 

it 

60,000 

it 

80,000 

ft 

100,000 

II 

1 

0 

1 

10 

2 

0 

3 

0 

6 

0 

9 

0 

12 

0 

25 

0 

35 

0 

45 

0 

55 

0 

65 

0 

75 

0 

85 

0 

95 

0 

110 

0 

130 

0 

170 

0 

240 

Q 

350 

0 

450 

0 

550 

0 

650 

0 

800 

0 

1000 

0 

194  OF   CORPOREAL    HEREDITAMENTS. 

consideration,  unless  a  memorial  of  such  deeds  be  duly  registered  before 
the  registering  of  the  memorial  of  the  deed  under  which  such  subsequent 
r*in-n  purchaser  or  mortgagee  *shall  claim.1  Wills  of  lands  in  the 
above  counties  ought  also  to  be  registered,  in  order  to  prevail 
against  subsequent  purchasers  or  mortgagees.  Conveyances  of  lands 
forming  part  of  the  great  level  of  the  fens,  called  Bedford  Level,  are 
also  required  to  be  registered  in  the  Bedford  Level  Office  ;(k)  but  the 
construction  which  has  been  put  on  the  statute,  by  which  such  registry 
is  required,  prevents  any  priority  of  interest  from  being  gained  by 
priority  of  registration. (I) 

From  the  specimen  before  him,  the  reader  will  be  struck  with  the  stiff 
and  formal  style  which  characterizes  legal  instruments  ;  but  the  formality 
to  be  found  in  every  properly  drawn  deed  has  the  advantage,  that  the 
reader  who  is  acquainted  with  the  usual  order  knows  at  once  where  to 
find  any  particular  portion  of  the  contents  ;  and,  in  matters  of  intricacy, 
which  must  frequently  occur,  this  facility  of  reference  is  of  incalculable 
advantage.  The  framework  of  every  deed  consists  of  but  one,  two,  or 
three  simple  sentences,  according  to  the  number  of  times  that  the  testatum, 
or  witnessing  part,  "  Now  this  Indenture  witnesseth,"  is  repeated.  This 
testatum  is  always  written  in  large  letters ;  and,  though  there  is  no  limit 
to  its  repetition  (if  circumstances  should  require  it),  yet,  in  the  majority 
of  cases,  it  occurs  but  once  or  twice  at  most.  In  the  example  above  given, 
it  will  be  seen  that  the  sentence  on  which  the  deed  is  framed  is  as  fol- 
lows :  "  This  Indenture,  made  on  such  a  day  between  such  parties, 
"witnesseth,  that  for  so  much  money  A.  B.  doth  grant  certain  premises 
"unto  and  to  the  use  of  C.  D.  and  his  heirs."  After  the  names  of  the 
parties  have  been  given,  an  interruption  occurs  for  the  purpose  of  intro- 
ducing the  recitals  ;  and  when  the  whole  of-  the  introductory  circum- 
stances  have  been  mentioned,  the  thread  *is  resumed,  and  the  deed 
•-  J  proceeds,  "Now  this  Indenture  witnesseth."  The  receipt  for  the 
purchase-money  is  again  a  parenthesis ;  and  soon  after  comes  the  description 
of  the  property,  which  further  impedes  the  progress  of  the  sentence,  till  it 

(k)  Stat.  15  Car.  II.  c.  17,  s.  8.  (I)  Willis  v.  Brown,  10  Sim.  127. 

1  The  registry  or  recording  of  deeds  has  notice,  and  in  some  States  as  to  creditors, 

been  provided  for  in  all  the  United  States  A  reference  to  the  statutes  themselves  will 

by  Local  statutes,  of  which  the  effect  may  be  found  in  4  Greenleaf's  Cruise  445,  and 

in  general  be  said  to  be  that  deeds,  if  un-  their  effect  as   to   notice  to   purchasers  is 

recorded,  though  good  against  the  grantor  thoroughly  discussed  in  Mr.  Hare's  note  to 

and  his  heirs  and  devisees,  are  void  as  to  Le    Neve   v.   Le  Neve,    2   Lead.    Cases   in 

subsequent  bond  fide  purchasers    without  Equity,  p.  177  (4th  Am.  ed.,  p.  144).    R. 


OF    A    MODERN    CONVEYANCE.  196 

is  taken  up  in  the  habendum,  "To  have  and  to  hold,"  from  which  it  un- 
interruptedly proceeds  to  the  end.  The  contents  of  deeds,  embracing  as 
they  do  all  manner  of  transactions  between  man  and  man,  must  neces- 
sarily be  infinitely  varied ;  and  a  simple  conveyance,  such  as  that  we 
have  given,  is  rare,  compared  with  the  number  of  those  in  which  special 
circumstances  occur.  But  in  all  deeds,  as  nearly  as  possible,  the  same 
order  is  preserved.  The  names  of  all  the  parties  are  invariably  placed 
at  the  beginning;  then  follow  recitals  of  facts  relevant  to  the  matter  in 
hand  ;  then,  a  preliminary  recital,  stating  shortly  what  is  to  be  done  ; 
then,  the  testatum,  containing  the  operative  words  of  the  deed,  or  the 
words  which  effect  the  transaction  of  which  the  deed  is  the  witness  or 
evidence;  after  this,  if  the  deed  relate  to  property,  come  the  parcels  or 
description  of  the  property,  either  at  large,  or  by  reference  to  some  deed 
already  recited;  then,  the  habendum,  showing  the  estate  to  be  holden; 
then,  the  uses  and  trusts,  if  any  ;  and,  lastly,  such  qualifying  provisos 
and  covenants  as  may  be  required  by  the  special  circumstances  of  the 
case.  Throughout  all  this,  not  a  single  stop  is  to  be  found,  and  the  sen- 
tences are  so  framed  as  to  be  independent  of  their  aid;  for,  no  one 
would  wish  the  title  to  his  estates  to  depend  on  the  insertion  of  a  comma 
or  semicolon.  The  commencement  of  sentences,  and  now  and  then  some 
few  important  words,  which  serve  as  landmarks,  are  rendered  conspicuous 
by  capitals  :  by  the  aid  of  these,  the  practiced  eye  at  once  collects  the 
sense ;  whilst,  at  the  same  time,  the  absence  of  stops  renders  it  next  to 
impossible  materially  to  alter  the  meaning  of  a  deed,  without  the  forgery 
being  discovered. 

*The  adherence  of  lawyers,  by  common  consent,  to  the  same  r*iq7-| 
mode  of  framing  their  drafts  has  given  rise  to  a  great  similarity 
in  the  outward  appearance  of  deeds  ;  and  the  eye  of  the  reader  is  con- 
tinually caught  by  the  same  capitals,  such  as,  "This  Indenture," 
"And  whereas,"  "Now  this  Indenture  witnesseth,"  "To  have 
and  TO  hold,"  &c.  This  similarity  of  appearance  seems  to  have  been 
mistaken  by  some  for  a  sameness  of  contents, — an  error  for  which  any 
one  but  a  lawyer  might  perhaps  be  pardoned.  And  this  mistake,  coupled 
with  a  laudable  anxiety  to  save  expense  to  the  public,  appears  to  have 
produced  a  plan  for  making  conveyances  by  way  of  schedule.  In  pur- 
suance of  this  plan,  two  acts  of  parliament  were  some  time  since  passed, 
one  for  conveyances, (jn)  the  other  for  leases. (n)  These  acts,  however,  as' 
might  have  been  expected,  are  very  seldom  employed  ;  nor  is  it  possible 
that  any  schedule  should  ever  comprehend  the  multitude  of  variations  to 

(m)  Stat.  8  &  9  Vict   c.  119.  («)  Stat.  8  &  9  Vict.  c.   124. 

12 


197  OF    CORPOREAL    HEREDITAMENTS. 

which  purchase-deeds  are  continually  liable.  In  the  midst  of  this  variety, 
the  adoption,  as  nearly  as  possible,  of  the  same  framework  is  a  great 
saving  of  trouble,  and  consequently  of  expense  ;  but  so  long  as  the  power 
of  alienation  possessed  by  the  public  is  exercisable  in  such  a  variety  of 
ways  and  for  such  a  multitude  of  purposes  as  is  now  permitted,  so  long 
will  the  conveyance  of  landed  property  call  for  the  exercise  of  learning 
and  skill,  and  so  long  also  will  it  involve  the  expense  requisite  to  give  to 
such  learning  and  skill  its  proper  remuneration.  The  remuneration, 
however,  afforded  to  the  profession  of  the  law  has  hitherto  been  bestowed 
in  a  manner  which  calls  for  some  remark.  In  a  country  like  England, 
where  every  employment  is  subject  to  the  keenest  competition,  there  can 
be  little  doubt  that,  whatever  method  maybe  taken  for  the  remuneration 
r*1Q81  °^  Pr°fessi°nal  services,  the  *nature  and  quantity  of  the  trouble 
"-  incurred  must,  on  the  average  and  in  the  long  run,  be  the  actual 

measure  of  the  remuneration  paid.  The  misfortune  is  that  when  a 
wrong  method  of  remuneration  is  adopted,  the  true  proportion  between 
service  and  reward  is  necessarily  obtained  by  indirect  means,  and  there- 
fore in  a  more  troublesome  and,  consequently,  more  expensive  manner, 
than  if  a  proper  scale  had  been  directly  used.  In  the  law,  unfortunately, 
this  has  been  the  case,  and  there  seems  no  good  reason  why  any  individual 
connected  with  the  law  should  be  ashamed  or  afraid  of  making  it  known. 
The  labor  of  a  lawyer  is  very  different  from  that  of  a  copyist  or  printer  ; 
it  consists  first  and  chiefly  in  acquiring  a  minute  acquaintance  with  the 
principles  of  the  law,  then  in  obtaining  a  knowledge  of  the  facts  of  any 
particular  case  which  may  be  brought  before  him,  and  lastly  in  practi- 
cally applying  to  such  case  the  principles  he  has  previously  learnt.  But, 
for  the  last  and  least  of  these  items  alone  he  has  hitherto  obtained  any 
direct  remuneration  ;  for,  deeds  have  hitherto  been  paid  for  by  the 
length,  like  printing  or  copying,  without  any  regard  to  the  principles 
they  involved,  or  to  the  intricacy  or  importance  of  the  facts  to  which 
they  might  relate  ;(o)  and,  more  than  this,  the  rate  of  payment  was  fixed 
so  low  that  no  man  of  education  could  afford  for  the  sake  of  it,  first 
to  ascertain  what  sort  of  instrument  the  circumstances  might  require, 
and  then  to  draw  a  deed  containing  the  full  measure  of  ideas  of  which 

(o)  By  statute  6  &  7  Vict.  c.  73,  s.  38,  the  charges  of  a  solicitor  for  business  relating 
entirely  to  conveyancing  are  rendered  liable  to  taxation  or  reduction  to  the  established 
scale,  which  is  regulated  only  by  length.  Previously  to  this  statute,  the  bill  of  a  soli- 
citor relating  to  conveyancing  was  not  taxable,  unless  part  of  the  bill  was  for  business 
transacted  in  some  court  of  law  or  equity.  But  although  conveyancing  bills  were  not 
strictly  taxable,  they  were  always  drawn  up  on  the  same  principle  of  payment  by 
length  which  pervades  the  other  branches  of  the  law. 


OF   A    MODERN    CONVEYANCE.  198 

words  are  .capable.  The  payment  to  a  solicitor  for  drawing  a  deed 
*was  fixed  at  one  shilling  for  every  seventy-two  words,  denomi- 
nated a  folio;  and  the  fees  of  counsel,  though  paid  in  guineas,  L  J 
averaged  about  the  same.  The  consequence  of  this  false  economy  on 
the  part  of  the  public  has  been  that  certain  well-known  and  long-estab- 
lished lengthy  forms,  full  of  synonyms  and  expletives,  are  current  among 
lawyers  as  common  forms,  and,  by  the  aid  of  these,  ideas  are  diluted  to 
the  proper  remunerating  strength ;  not  that  a  lawyer  actually  inserts 
nonsense  simply  for  the  sake  of  increasing  his  fee ;  but  words,  some- 
times unnecessary  in  any  case,  sometimes  only  in  the  particular  case  in 
which  he  is  engaged,  are  suffered  to  remain,  sanctioned  by  the  authority 
of  time  and  usage.  The  proper  amount  of  verbiage  to  a  common  form 
is  well  established  and  understood ;  and  whilst  the  attempt  to  exceed  it 
is  looked  on  as  disgraceful,  it  is  never  likely  to  be  materially  diminished 
till  a  change  is  made  in  the  scale  of  payment.  The  case  of  the  medical 
profession  is  exactly  parallel ;  for,  so  long  as  the  public  think  that  the 
medicine  supplied  is  the  only  thing  worth  paying  for,  so  long  will  cures 
ever  be  accompanied  with  the  customary  abundance  of  little  bottles.  In 
both  cases,  the  system  is  bad  ;  but  the  fault  is  not  with  the  profession, 
who  bear  the  blame,  but  with  the  public,  who  have  fixed  the  scale  of 
payment,  and  who,  by  a  little  more  direct  liberality,  might  save  them- 
selves a  considerable  amount  of  indirect  expense.  If  physicians'  pre- 
scriptions were  paid  for  by  their  length,  does  any  one  suppose  that  their 
present  conciseness  would  long  continue? — unless  indeed  the  rate  of 
payment  were  fixed  so  high  as  to  leave  the  average  remuneration  the 
same  as  at  present.  The  acts  above  mentioned  contained  a  provision 
that,  in  taxing  any  bill  for  preparing  and  executing  any  deed  under  the 
acts,  the  taxing  officer  should  consider,  not  the  length  of  such  deed,  but 
only  the  skill  and  labor  employed  and  responsibility  incurred  in  the 
*preparation  thereof.(p)  This,  so  far,  was  an  effort  in  the  right  r*900-| 
direction.  And  an  act  has  now  been  passed  to  amend  the  law  relat- 
ing  to  the  remuneration  of  attorneys  and  solicitors,^)  by  which  such  re- 
muneration is  now  authorized,  under  certain  restrictions,  to  be  fixed  by 
agreement  ;(r)  and  which  provides(s)  that,  upon  any  taxation  of  costs, 
the  taxing  officer  may,  in  determining  the  remuneration,  if  any,  to  be 
allowed  to  the  attorney  or  solicitor  for  his  services,  have  regard,  subject 
to  any  general  rules  or  orders  hereafter  to  be  made,  to  the  skill,  labor, 
and    responsibility    involved.      But    long-rooted    customs    are    hard    to 

(p)  Stat.  8  &  9  Vict.  c.  119,  s.  4 ;  stat.  8  &  9  Vict.  c.  124,  s.  3. 
(q)  Stat.  33  &  34  Vict,  c.  28,  passed  14th  July,  1870. 
(r)  Sects.  4-15.  (s)  Sect.  18. 


200  OF  CORPOREAL  HEREDITAMENTS. 

eradicate.  The  student  must,  therefore,  make  up  his  mind  to  find  in 
legal  instruments  a  considerable  amount  of  verbiage;  at  the  same  time 
he  should  be  careful  not  to  confound  this  with  that  formal  and  orderly 
style  which  facilitates  the  lawyer's  perusal  of  deeds,  or  with  that  repeti- 
tion which  is  often  necessary  to  exactness  without  the  dangerous  aid  of 
stops.  The  form  of  a  purchase-deed,  which  has  been  given  above,  is 
disencumbered  of  the  usual  verbiage,  whilst,  at  the  same  time,  it  pre- 
serves the  regular  and  orderly  arrangement  of  its  parts.  A  similar 
conveyance,  by  deed  of  grant,  in  the  old-established  common  forms,  will 
be  found  in  the  Appendix. (t)  At  the  present  day,  however,  these  forms 
are  often  much  curtailed. 

To  return  : — A  lease  and  release  was  said  to  be  an  innocent  convey- 
ance ;  for  when,  by  means  of  the  lease  and  the  Statute  of  Uses,  the  pur- 
chaser had  once  been  put  into  possession,  he  obtained  the  fee  simple  by 
r*9f>n  *ne  release;  and  a  release  never  operates  by  wrong,  as  a  *feoff- 
ment  occasionally  did, (if)  but  simply  passes  that  which  may 
lawfully  and  rightly  be  conveyed. (x)  The  same  rule  is  applicable  to  a 
deed  of  grant. (y)  Thus,  if  a  tenant  merely  for  his  own  life  should  by  a 
lease  and  release,  or  by  a  grant,  purport  to  convey  to  another  an  estate 
in  fee  simple,  his  own  life  interest  only  would  pass,  and  no  injury  would 
be  done  to  the  reversioner.  The  word  grant  is  the  proper  and  technical 
term  to  be  employed  in  a  deed  of  grant, (z)  but  its  employment  is  not 
absolutely  necessary;  for  it  has  been  held  that  other  words  indicating  an 
intention  to  grant  will  answer  the  purpose.(a) 

In  addition  to  a  conveyance  by  deed  of  grant,  other  methods  are  occa- 
sionally employed.  Thus,  there  may  be  a  bargain  and  sale  of  an  estate 
in  fee  simple,  by  deed  duly  enrolled  pursuant  to  the  statute  27  Hen. 
VIII.  c.  16,  already  mentioned. (b)  The  chief  advantage  of  a  bargain 
and  sale  is  that  by  a  statute  of  Anne(r?)  an  office  copy  of  the  enrolment 
of  a  bargain  and  sale  is  made  as  good  evidence  as  the  original  deed.1  In 
some  cities  and  boroughs  the  enrolment  of  bargains  and  sales  is  made  by 

(!)  See  Appendix  (D).  («)  Ante,  p.  145. 

Litt.  B.  600.  (y)  Litt.  ss.  616.  617. 

(2)  Shep.  Touch.  229. 

-hove   v.  Pincke,  5  T.  Rep.  124;    Haggerston    v.  Hanbury,  5   Barn.  &  Cre  — .  LOT 
(E.  C.  L.  R.  vol.  11). 

\'i  Ante,  p.  L85.  (c.)  Stat.  10  Anne,  c.  18,  s.  3. 

1  This  is  in  general  provided  for  in  the  recording  acts  in  the  United  States.     M. 


OF    A    MODERN    CONVEYANCE. 


201 


the  mayors  or  other  officers.^)    And  in  the  counties  palatine  of  Lancaster 
and  Durham  it  may  be  made  in  the  palatine  courts  ;(e)  and  so  the  enrol- 
ment of  bargains  and  sales  of  land  in  the  county  of  Cheshire  might  have 
been  made  in  the  palatine  courts  of  that  county  until  their  abolition.(/) 
Bargains  and  sales  of  lands  in  the  county  of  York  may  be  enrolled  in  the 
register  of  the  riding  in  which  the  lands  \\c.(g)     *When  a  bar-    r-*2Q2] 
gain  and  sale  is  employed,  the  whole  legal  estate  in  fee  simple 
passes,  as  we  have  seen,(A)  by  means  of  the  Statute  of  Uses— the  bar- 
gainor becoming  seised  to  the  use  of  the  bargainee  and  his  heirs.     A 
bargain  and  sale,  therefore,  cannot,  like  a  lease  and  release,  or  a  grant, 
be  made  to  one  person  to  the  use  of  another ;  for,  the  whole  force  of  the 
Statute  of  Uses  is  already  exhausted  in  transferring  the  legal  estate  in 
fee  simple  to  the  bargainee, (t)1  so  that  the  use  declared  would  be  a  use 
upon  a  use,  void  at  law,  though  valid  in  equity.     Similar  to  a  bargain 
and  sale  is  another  method  of  conveyance  occasionally,  though   very 

(d)  Stat.  27  Hen.  VIII.  c.  16,  s.  2.  (a)  Stat.  5  Eliz.  c.  26. 

(/)  By  stat.  11  Geo.  IV.  &  1  Will.  IV.  c.  70. 

(ff)  Stat.  5  &  6  Anne,  c.  18  ;  6  Anne,  c.  35,  ss.  16,  17,  34  ;  8  Geo.  II.  c.  6,  s.  21. 

(h)  Ante,  p.  183.  (»)  See  ante,  p.  184. 


i  Because  a  use  cannot  be  limited  upon 
a  use,  and  there  can  be   no  executed  use 
beyond  that  of  the  estate  of  the  bargainee  : 
Doe  d.  Lloyd   v.  Passinghara,  6   Barn.  & 
Cress.  305   (E.  C.  L.  R.  vol.  13).     But  al- 
though incapable  of  taking  effect  as  a  use, 
yet  it  may  clearly  be  sustained  as  a  trust 
(Gilbert  on  Uses,  Sugden's  note  1 ;  Jackson 
v.  Carey,  16  Johnson   304;    Franciscus  v. 
Reigart,  4  Watts  108,  118),  iu  all  cases  in 
which  equity  can  find  anything  to  bind  the 
conscience  of  the  bargainee.     "  When  the 
grant  of  an  estate  of  freehold/'  says   Mr. 
Hare,   "was   invalid    at   law  for   want  of 
livery  of  seisin,  the  grantee  could  not  re- 
cover, in  equity,  without  proving  a  con- 
sideration.    But  when  livery  was  made  to 
a  feoffee,  for  the  use  of  a  stranger,  no  con- 
sideration was  necessary  to  support  the  use. 
And  the  only  difference  between  making 
such  a  conveyance  by  feoffment  and   by 
bargain  and   sale   is  the  real  or  nominal 
consideration    given    by    the    bargainee, 
which  affords  room  for  an  argument  that 
he  is  entitled  to  retain  that  for  which  be 
has  given  value,  as  against  third  persons, 


who  are  mere  volunteers.    But  this,  as  well 
as  every  similar  question,  would  seem  to 
be  one  of  fact  rather  than  of  law.     When 
the  grantee,  in  a  deed  of  bargain  and  sale, 
is  really  a  purchaser  for  full  and  valuable 
consideration,  and  the  declaration  of  trust 
is  introduced  solely  at  his  request,  and  not 
that  of  the  grantor,  there  may  be  room  for 
doubt  whether    there  is   anything  in  the 
transaction  to    bind    his   conscience,  and 
render  him    answerable    in    equity,  when 
he  is  not  at  law.     For  it  may  be  said  under 
these  circumstances,  with  much  truth,  that 
equity  ought  not  to  take  the   estate  from 
one  who  has  paid  for  it,  in  order  to  give  it 
to  another  who  has  not.     But  where  the 
trust  is  the  result  of  an  express  stipulation 
between  the  grantor  and  grantee,  as  it  must 
be    taken    to    be    unless    the    contrary   is 
shown,  and  forms  a  part  of  the  contract 
under  which   the  latter  claims,  there  can 
be  no  doubt  that  it  is  binding  on  him,  and 
that  he  cannot  refuse  to  execute  it,  when 
called  on    subsequently  by  the  cestui  que 
trust.''    Note  to  Roe  v.  Tranmar,  2  Smith's 
Leading  Cases  (6th  ed.)  525.  R. 


202 


OF    CORPOREAL    HEREDITAMENTS. 


rarely,  employed,  namely,  a  covenant  to  stand  seised  to  the  use  of 
another,  in  consideration  of  blood  or  marriage.^)1  In  addition  to  these 
methods,  there  may  be  a  conveyance  by  appointment  of  a  use,  under  a 
power  of  appointment,  of  which  more  will  be  said  in  a  future  chapter. (J) 
The  student,  indeed,  can  never  be  too  careful  to  avoid  supposing  that, 
when  he  has  read  and  understood  a  chapter  of  the  present  or  any  other 
elementary  work,  he  is  therefore  acquainted  with  all  that  is  to  be  known 
on  the  subject.  To  place  him  in  a  position  to  comprehend  more  is  all 
that  can  be  attempted  in  a  first  book. 

(k)  See  Doe  d.  Daniell  v.  AVoodroffe,  10  Mee.  &  Wels.  608  ;  Doe  d.  Starling  v.  Prince, 
C.  P.  15  Jur.  632. 

(/)  See  the  chapter  on  executory  interests. 


1  When  uses  are  raised  upon  a  pecuniary 
consideration,  the  conveyance  creating 
them  is  called  a  bargain  and  sale  ;  when 
raised  upon  a  good  consideration,  as  blood 
or  marriage,  it  is  called  a  covenant  to 
stand  seised  which  is  neither  within  the 
words  nor  the  policy  of  the  Statute  of 
Enrolments,  the  consideration  being  of  a 
public  nature.  2  Sanders  on  Uses  79 ; 
Jackson  v.  Dunsbagh,  1  Johns.  Cas.  97. 
The  presence  of  either  the  one  or  the  other 
of  these  considerations  is  necessary  to  the 
validity  of  a  deed  which  is  to  take  effect 
under  the  Statute  of  Uses.  Thus,  in  Jack- 
son v.  Sebring,  16  Johns.  515,  a  married 
woman  joined  with  her  husband  in  a  deed 
in  which,  reciting  that  she  had  inherited  the 


premises,  which  she  wished  to  settle  in  the 
manner  thereinafter  mentioned,  "  in  con- 
sideration thereof  and  of  divers  other  good 
causes  and  considerations,"  they  granted 
the  premises  to  a  stranger  in  trust  for  cer- 
tain members  of  her  family.  It  was  held 
that  this  deed  could  not  take  effect  as  a 
bargain  and  sale,  because  there  was  no 
pecuniary  consideration,  nor  as  a  covenant 
to  stand  seised,  because  the  grantee  was  a 
stranger  to  the  grantor,  neither  related  by 
blood  or  marriage  ;  and  the  heirs  of  the 
latter  were  therefore  declared  to  be  entitled 
to  recover;- and  the  same  view  was  sus- 
tained in  Jackson  v.  Caldwell,  1-  Cowen 
622.  R. 


*CHAPTER    X.  [*203] 

OF   A    WILL    OF   LANDS. 

The  right  of  testamentary  alienation  of  lands  is  a  matter  depending 
upon  act  of  parliament.  We  have  seen  that  previously  to  the  reign  of 
Henry  VIII.  an  estate  in  fee  simple,  if  not  disposed  of  in  the  lifetime  of 
the  owner,  descended,  on  his  death,  to  his  heir  at  law. (a)  To  this  rule, 
gavelkind  lands,  and  lands  in  a  few  favored  boroughs,  formed  exceptions  ; 
and  the  hardship  of  the  rule  was  latterly  somewhat  mitigated  by  the  prev- 
alence of  conveyances  to  uses  ;  for  the  Court  of  Chancery  allowed  the 
use  to  be  devised  by  will. (6)  But  when  the  Statute  of  Uses(c)  came  into 
operation,  and  all  uses  were  turned  into  legal  estates,  the  title  of  the  heir 
again  prevailed,  and  the  inconvenience  of  the  want  of  testamentary  power 
then  began  to  be  felt.  To  remedy  this  inconvenience,  an  act  of  parlia- 
ment,^) to  which  we  have  before  referred, (e)  was  passed  six  years  after 
the  enactment  of  the  Statute  of  Uses.  By  this  act,  every  person  having 
any  lands  or  hereditaments  holden  in  socage,  or  in  the  nature  of  socage 
tenure,  was  enabled,  by  his  last  will  and  testament  in  writing,  to  give  and 
devise  the  same  at  his  will  and  pleasure  ;  and  those  who  had  estates  in 
fee  simple  in  lands  held  by  knight's  service  were  enabled,  in  the  same 
way,  to  give  and  devise  two  third  parts  thereof.  When,  by  the  r*.2041 
*statute  of  12  Car.  II.  c.  24,(/)  socage  was  made  the  universal 
tenure,  all  estates  in  fee  simple  became  at  once  devisable,  being  all  then 
holden  by  socage.  This  extensive  power  of  devising  lands  by  a  mere 
writing  unattested  was  soon  curtailed  by  the  Statute  of  Frauds,^)  which 
required  that  all  devises  and  bequests  of  any  lands  or  tenements,  devis- 
able either  by  statute  or  the  custom  of  Kent,  or  of  any  borough,  or  any 
other  custom,  should  be  in  writing,  and  signed  by  the  party  so  devising 
the  same,  or  by  some  other  person  in  his  presence  and  by  his  express 
directions,  and  should  be  attested  and  subscribed  in  the  presence  of  the 
said  devisor  by  three  or  four  credible  witnesses,  or  else  they  should  be 
utterly  void  and  of  none  effect.  And  thus  the  law  continued  till  the  year 
1837,  when  an  act  was  passed  for  the  amendment  of  the  laws  with  respect 

(a)  Ante,  p.  63.  (b)  Ante,  p.  156. 

(c)  Stat.  27  Hen.  VIII.  c.  10;  ante,  p.  157. 

(d)  32  Hen.  VIII.  c.  1,  explained  by  statute  34  &  35  Hen.  VIII.  c.  5. 

(e)  Ante,  p.  63.  (/)  Ante,  p.  123. 
(ff)  29  Car.  II.  c.  3,  s.  5. 


204  OF    CORPOREAL    HEREDITAMENTS. 

to   wil!s.(//)     By   this   act   the  original   statute  of  Henry  VIII.(t)   was 
repealed,  except  as  to  wills  made  prior  to  the  1st  of  January,  1838,  and 
the  law  was  altered  to  its  present  state.     This  act  permits  of  the  devise 
by  will  of  every  kind  of  estate  and  interest  in  real  property,  which  would 
otherwise  devolve  to  the  heir  of  the  testator,  or,  if  he  became  entitled  by 
descent,  to   the   heir  of  his  ancestor  ;(,/ )  but  enacts(fc)  that  no  will  shall 
he  valid  unless  it  shall  he  in  writing,  and  signed  at  the  foot  or  end  thereof 
by  the  testator,  or  by  some  other  person  iu  his  presence  and  by  his  direc- 
tion ;  and  such  signature  shall  be  made  or  acknowledged  by  the  testator, 
in  the  presence  of  two  or  more  witnesses,  present  at  the  same  time;  and 
such  witnesses  shall   attest,  and  shall  subscribe  the  will   in  the  presence 
of    the    testator.      One   would    have    thought   that   this   enactment   was 
sufficiently  clear,  especially  that  part  of  it  which  directs  the  will  to  be 
r.    *signed    at   the   foot   or  end   thereof.      Some  very  careless  tes- 
L         -I    tators,  and  very  clever  judges,  have,  however,  contrived  to  throw 
upon  this  clause  of  the  act  a  discredit  which  it  does  not  deserve.     And 
it  has  accordingly  been  enacted, (/)  by  way  of  explanation,  that  every  will 
shall,  so  far  only  as  regards  the  position  of  the  signature  of  the  testator, 
or  of  the  person  signing  for  him,  be  deemed  to  be  valid,  if  the  signature 
shall  be  so  placed  at,  or  after,  or  following,  or  under,  or  beside,  or  oppo- 
site to  tin'  end  of  the  will,  that  it  shall   be  apparent  on  the  face  of  the 
will  that  the  testator  intended  to  give  effect  by  such  his  signature  to  the 
writing  signed  as  his  will  ;  and  that  no  such  will  shall  be  affected  by  the 
circumstance  that  the  signature  shall  not  follow,  or  be  immediately  after 
the  foot  or  end  of  the  will,  or  by  the  circumstance  that  a  blank  space 
shall  intervene  between  the  concluding  word  of  the  will  and  the  signature, 
or  by  the  circumstance  that   the   signature  shall  be  placed  among  the 
words  of  the  testimonium  clause,  or  of  the  clause  of  attestation,  or  shall 
follow  or  he  after  or  under  the  clause  of  attestation,  either  with  or  with- 
out  a   blank   space  intervening,  or  shall  follow  or  be  after  or  under  or 
beside  the  names,  or  one  o\'  the   names,  of  the  subscribing  witnesses,  or 
by  the  circumstance  that  the  signature   shall   be   on   a   side   or   page,  or 
other   portion   of  the   paper  or   papers,  containing   the  will,  whereon   no 
clause  or  paragraph  or  disposing  part  oi'  the  will   shall   be  written  above 
the  signature,  or  by  the  circumstance  that  there  shall   appear  to   be  suf- 
ficient space  on  or  at  the  bottom  o\'  the  preceding  side  or  page,  or  other 
portion  of  the  same  paper,  on  which  the  will  is  written,  to  contain   the 
signature;   and   the   enumeration  of  the  above  circumstances   is   not    to 

Stat.  T  Will.  IV.  ft  1  Vict.  c.  26.  (i)  ::•-'  Hen.  VIII.  c.  1. 

:  Will.  IV.  ,v  i  Vict  c.  26,  Sect.  9. 

{!)  Si.it.  15  ft  16  Vict    c.  24. 


OF    A    WILL    OF    LANDS. 


20.; 


restrict  the  generality  of  the  above  enactment.  But  no  signature  is  to 
be  operative  to  give  effect  to  any  disposition  or  direction  which  r*2061 
is  *underneath  or  which  follows  it;  nor  shall  it  give  effect  to 
any  disposition  or  direction  inserted  after  the  signature  shall  be  made. 
The  unlearned  reader  will  perhaps  be  of  opinion  that  there  is  not  one  of 
the  positions  above  so  laboriously  enumerated  that  might  not  very  prop- 
erly have  been  considered  as  at  the  foot  or  end  of  the  will  within  the 
spirit  and  meaning  of  the  act ;  except  in  the  case  of  a  large  blank  being 
left  before  the  signature,  apparently  for  the  purpose  of  the  subsequent 
insertion  of  other  matter;  in  which  case  the  fraud  to  which  the  will  lays 
itself  open  would  be  a  sufficient  reason  for  holding  it  void.1 

1  As  the  common  law  had  its  origin  at  a  with  restraints  which  defeated  the  purpose 
period  when  writing  was  little  known,  it  of  the  testator  if  he  failed  to  observe  them, 
permitted  most  of  the  essential  acts  of  life  no  precautions  were  taken  against  the  in- 
to be  transacted  without  writing.  Thus  tervention  of  fraud  in  the  testamentary  dis- 
a  feoffment  or  lease  for  years  might  be  position  of  money,  stocks,  or  other  per- 
made  at  law,  or  a  bargain  and  sale  of  sonal  assets,  or  even  of  leases  for  years, 
lands  in  equity,  without  the  aid  of  the  however  large  in  amount  or  value, 
pen  ;  and  deeds  even  derived  their  force  Whatever  may  have  been  the  wisdom  of 
from  the  seals  and  not  from  the  signatures  this  distinction,  at  a  time  when  personal 
of  the  parties.  In  like  manner  a  will  of  property  was  still  insignificant  in  value  and 
personal  property,  and  a  will  of  land,  importance,  as  compared  with  land,  it  has 
where  the  power  of  devising  land  was  ceased  to  be  applicable  at  the  present  day, 
given  by  custom,  required  nothing  more  when  real  estate  plays  a  less  conspicuous 
to  make  it  valid,  than  proof  that  it  was  part  in  the  business  of  the  world  than  per- 
really  the  last  will  of  the  testator.  Hence  sonal  estate.  Accordingly,  many  of  the 
not  only  was  any  writing,  proved  to  express  States  of  this  country  have  departed  from 
the  final  and  testamentary  purpose  of  a  the  provisions  of  the  Statute  of  Frauds  in 
dead  man.  a  sufficient  will,  though  neither  this  respect,  and  by  requiring  greater  pre- 
written nor  signed  by  him,  but  a  nuncu-  cautions  in  the  execution  of  wills  of  per- 
pative  or  verbal  devise  or  testament  might  sonalty,  or  less  in  those  of  realty,  have 
be  equally  valid:  Co.  Litt.  111.  The  brought  both  more  nearly  to  the  same 
Statute  of  Wills  rendered  a  writing  essen-  standard;  while  others  have  abrogated 
tial  to  the  exercise  of  the  testamentary  the  distinction  altogether,  and  required 
power  which  it  gave,  but  made  no  altera-  that  the  testamentary  power  shall  be  ex- 
tion  in  that  which  existed  previously,  and  ercised  in  the  same  way,  whatever  may  be 
bequests  of  personalty,  and  devises  of  the  nature  of  the  property  devised. 
lands  devisable  by  custom,  consequently  Thus  Maine  and  Massachusetts  adhere  to 
remained  as  they  were  at  common  law  the  provisions  of  the  statute  with  little  or 
before  its  passage.  And  the  Statute  of  no  variation  as  regards  lands,  but  have 
Frauds  which  surrounded  the  execution  of  rendered  them  obligatory  in  the  case  of 
all  wills  of  land,  whether  devisable  by  personal  estate.  In  Pennsylvania,  the  sig- 
custom  or  by  the  Statute  of  Wills,  with  nature  of  the  testator  at  the  end  of  the  will, 
the  forms  and  restrictions  mentioned  in  without  the  attestation  of  witnesses,  is 
the  text,  left  wills  of  personalty  without  necessary  and  sufficient  for  the  validity  of 
other  guard  than  a  restriction  on  those  wills  both  of  real. and  personal  property, 
which  were  made  verbally.  Hence,  while  Some  of  the  other  States  require  a  devise 
the  power  of  devising  laud  was  surrounded  to    be  attested  by  witnesses,  but  make  a 


206 


OF    CORPOREAL    HEREDITAMENTS. 


The  Statute  of  Frauds,  it  will  be  observed,  required  that  the  witnesses 
should  be  credible ;  and,  on  the  point  of  credibility,  the  rules  of  law  with 
respect  to  witnesses  have,  till  recently,  been  very  strict ;  for  the  law  had 


simple  signature  enough  for  a  bequest : 
although  there  are  still  some  in  which  the 
distinction  made  by  the  Statute  of  Frauds 
between  wills  of  realty  and  personalty  sub- 
sists in  full  force,  and  personal  property 
may  be  bequeathed  by  a  writing  authenti- 
cated by  the  signature  of  the  testator,  on 
proof  that  it  was  written  by  him  or  by 
his  direction,  and  was  meant  by  him  as  a 
final  and  testamentary  disposition  of  his 
estate. 

The  alteration  in  the  law  which  put 
wills  of  land  and  chattels  on  the  same 
footing  was  made  in  New  York  in  the  year 
1827,  and  in  Pennsylvania  in  1833,  but  did 
not  take  place  in  England  until  1838,  and 
is  therefore  one  of  the  many  instances  in 
which  the  law  of  England  has  undergone 
modifications,  previously  made  here,  which 
would  seem  to  indicate  that  the  law  of  de- 
velopment is  the  same  in  both  countries, 
and  that  the  effect  of  transplanting  a  race 
by  colonization  is  to  hasten  the  growth  of 
change  in  laws  and  institutions,  rather 
than  produce  it  or  vary  its  character. 

The  following  summary  may  be  made  in 
conclusion  : 

At  common  law  a  writing  was  not  essen- 
tial to  the  validity  of  a  will,  either  of  real 
or  personal  property. 

It  was  necessary  to  the  exercise  of  the 
power  of  devise  given  by  the  statute  of 
Henry  VIII.,  but  customary  devises  and 
wills  of  personal  property  were  unaffected 
by  that  statute. 

The  Statute  of  Frauds  rendered  a  formal 
execution  necessary  to  the  devise  of  land, 
but  left  bequests  of  personalty  nearly  as  it 
found  them.  The  distinction  thus  made 
has  been  abandoned  in  England,  and  in 
many  pints  of  this  country. 

The  statutes  of  Maine,  Vermont,  Massa- 
chusetts. Rhode  Island,  New  York,  Ohio, 
Illinois,  Indiana,  Michigan,  Missouri,  and 
South  Carolina,  as  well  as  those  of  Missis- 
sippi, Virginia,  Kentucky,  Texas,  and 
Arkansas,  make  the  signature  of  the  testa- 


tor, and  attestation  of  witnesses,  neces- 
sary to  the  validity  of  wills  of  real  and 
personal  property,  although  witnesses  may 
be  dispensed  with  in  the  five  last-men- 
tioned States  when  the  will  is  wholly  in 
the  handwriting  of  the  testator.  The 
statute  of  Pennsylvania  goes  still  further, 
and  holds  the  unattested  signature  of  the 
testator  sufficient  in  all  cases  [though  it 
must  be  proved  by  two  or  more  competent 
witnesses.  M.].  In  Maryland,  Connecticut, 
and  Alabama,  the  signature  of  the  testa- 
tor is  necessary  and  sufficient  when  the 
will  is  of  personalty,  although  the  pres- 
ence and  attestation  of  witnesses  are 
necessary  in  the  case  of  land;  while 
Virginia,  Georgia,  Florida,  North  Caro- 
lina, and  New  Hampshire,  still  adhere  in 
substance  to  the  provisions  of  the  Statute 
of  Frauds  as  regards  both  real  and  per- 
sonal property,  save  that  two  witnesses 
are  sufficient  to  give  validity  to  a  devise 
in  North  Carolina  and  Virginia,  and  that 
attestation  is  unnecessary  when  the  will 
is  in  the  handwriting  of  the  testator,  and 
found  among  his  papers,  or  in  the  hands 
of  a  person  to  whom  he  has  intrusted  it 
for  safe  keeping. 

To  render  a  will  valid  under  the  Statute 
of  Frauds,  it  must  be  executed  by  the 
testator  in  the  presence  of  the  witnesses, 
and  attested  by  the  witnesses  in  the 
presence  of  the  testator.  The  latter  re- 
quisition is  express,  and  the  former  neces- 
sarily implied ;  for  the  witnesses  cannot 
attest  unless  they  witness  :  Swift  v.  Wiley, 
1  B.Monroe  117.  It  was,  however,  decided 
in  Grayson  v.  Atkinson,  2  Vesey  454 ; 
Ellis  v.  Smith,  1  Vesey,  Jr.  11  ;  Wright 
v.  Wright,  7  Bingham  457  ;  and  White  v. 
The  Trustees  of  the  British  Museum,  6  Id. 
310,  that  in  the  case  of  wills,  as  in  that  of 
deeds,  acknowledgment  is  equivalent  to 
execution,  and  that  a  declaration  by  the 
testator  that  the  instrument  is  his  will,  in 
the  presence  of  the  witnesses,  is  sufficient 
to  authorize  them  to  subscribe  their  at- 


OF    A    WILL    OF    LANDS. 


206 


so  great  a  dread  of  the  evil  influence  of  the  love  of  money  that  it  would 
not  even  listen  to  any  witness  who  had  the  smallest  pecuniary  interest  in 
the  result  of  his  own  testimony.  Hence,  under  the  Statute  of  Frauds,  a 
bequest  to  a  witness  to  a  will,  or  to  the  wife  or  husband  of  a  witness, 
prevented  such  witness  from  being  heard  in  support  of  the  will ;  and,  the 
witness  being  thus  incredible,  the  will  was  void  for  want  of  three  credible 
witnesses.  By  an  act  of  George  U.,{m)  a  witness  to  whom  a  gift  was 
made  was  rendered  credible,  and  the  gift  only  which  was  made  to  the 
witness  was  declared  void ;  but  the  act  did  not  extend  to  the  case  of  a 
gift  to  the  husband  or  wife  of  a  witness  ;  such  a  gift,  therefore,  still  ren- 
dered the  whole  will  void.(n)  Under  the  Wills  Act,  however,  the  incom- 
petency of  the  witness  at  the  time  of  the  execution  of  the  will,  or  at  any 

(to)  Stat.  25  Geo.  II.  c.  6. 

(«)  Hatfield  v.  Thorp,  5  Barn.  &  Aid.  589  (E.  C.  L.  R.  vol.  7) ;   1  Jarm.  on  Wills  65, 
1st  edit. ;  2  Strange  1255.  

1  Grattan  454),  have  made  enactments 
similar  to  that  recently  adopted  in  Eng- 
land, requiring  the  signature  to  be  sub- 
scribed or  written  at  the  end  or  foot  of 
the  will. 

The  provisions  of  the  Statute  of  Frauds, 
with   regard    to   the    revocation  of  wills, 
have  been  very   generally  re-enacted   in 
this  country,  and  it  has  been  held  here,  in 
accordance  with  the   cases   in    England, 
that  there   can   be   no  revocation   unless 
they  are  actually  and  literally  complied 
with  ;  and  that  a  mere  attempt  to  comply 
with  them  will  not  be  sufficient,  although 
frustrated  or  defeated  by  force  or  fraud. 
Doe  d.  Reed  v.  Harris,  6  Adolp.  &  Ellis 
209;   Boyd  v.  Cook,  3  Leigh  32;   Hise  v. 
Fincher,  10  Iredell  139.     Implied   revoca- 
tions   by   marriage,   and    the    birth    of  a 
child,  have  also   been  regulated  in  most 
of  the  States  of  this  country  by  legislation 
which,   in  some  instances,   has  provided 
that  both,   in   others  that  one,   of  these 
events  shall  enure  as  an  entire  revocation, 
but  has  more   generally  declared  that  a 
will  which  fails  to  make  provisions  for  a 
subsequent  wife  or  child  shall  fail  of  effect 
only  so  far  as  is  necessary  to  give  the  per- 
son thus  unprovided  for  the  share  which 
would  have  been  his  had  no  will   been 
made.     See    2   American   Leading  Cases, 
5th  ed.,  523.  R- 


testation,  although  they  do  not  see   him 
sign  or  seal  it. 

These  decisions  have  been  followed  in 
many  of  the  United  States :  Roser  v. 
Franklin,  6  Grattan  1  ;  Dudleys  v.  Dud- 
leys, 3  Leigh  436;  Hall  v.  Hall,  17  Pick. 
373  ;  Dewey  v.  Dewey,  1  Metcalf  249  ;  Ad- 
ams v.  Field,  21  Vermont  256  ;  Denton  v. 
Franklin,  9  B.  Monroe  28  ;  Beane  v.  Yerby, 
12  Gratt.  239;  Upchurch  v.  Upchurch,  16 
B.  Monroe  102.  [And  it  has  been  held  in 
some  cases  that  the  acknowledgment  need 
not  be  by  express  words,  but  may  be  by 
acts  or  circumstances  equivalent.  Rau- 
debaugh  v.  Shelley,  6  Ohio  N.  S.  307,  315  ; 
Coffin  v.  Coffin,  23  N.  Y.  9  ;  Tilden  v.  Til- 
den,  13  Gray  110.  M.]  In  New  Jersey, 
however,  where  the  act  of  1714  requires 
that  the  will  shall  be  signed  in  the  pres- 
ence of  the  witnesses,  it  has  been  held 
that  the  requisition  must  be  literally  com- 
plied with,  and  that  an  acknowledgment 
of  the  signature  before  them  is  insufficient. 
Den  v.  Mitton,  7  Haisted  70  ;  Den  v.  Mat- 
lack,  2  Harrison  87. 

It  has  been  held  in  this  country,  in  ac- 
cordance with  the  decisions  in  England, 
that  writing  the  name  of  the  testator  in 
the  body  of  the  instrument,  with  the  intent 
to  give  it  validity,  is  a  signature  within 
the  meaning  of  the  Statute  of  Frauds. 
Several  of  the  States,  however  (Sarah 
Mile's  Will,  4  Dana  1 ;   Waller  v.  Waller, 


207  OF    CORPOREAL    HEREDITAMENTS. 

r*9071    txme  afterwarc^  is  not  *sufficient  to  make  the  will  invalid  ;(o) 
*-  and  if  any  person  shall  attest  the  executiun  of  a  will,  to  whom 

or  to  whose  wife  or  husband  any  beneficial  interest  whatsoever  shall  be 
given  (except  a  mere  charge  for  payment  of  debts),  the  person  attesting 
will  be  a  good  witness  ;  but  the  gift  of  such  beneficial  interest  to  such 
person,  or  to  the  wife  or  husband  of  such  person,  will  be  void.(^)  Cred- 
itors, also,  are  good  witnesses,  although  the  will  should  .contain  a  charge 
for  payments  of  debts  ;(q)  and  the  mere  circumstance  of  being  appointed 
executor  is  no  objection  to  a  witness. (r)  By  more  recent  statutes,(s)  the 
rule  which  excluded  the  evidence  of  witnesses  in  courts  of  justice,  and  of 
parties  to  actions  and  suits,  on  account  of  interest,  has  been  very  prop- 
erly abolished  ;  and  the  evidence  of  interested  persons  is  now  received, 
and  its  value  estimated  according  to  its  worth;  but  the  Wills  Act  is  not 
affected  by  these  statutes.(tf)  The  courts  of  common  law  had  formerly 
exclusive  jurisdiction  in  questions  arising  on  the  validity  of  a  will  of  real 
estate,  whilst  the  ecclesiastical  courts  had  the  like  exclusive  jurisdiction 
over  wills  of  personal  estate.  But  an  act  was  passed  in  the  present  reign 
establishing  a  Court  of  Probate,(w)  in  which  all  wills  of  personal  estate 
are  now  required  to  be  proved.  This  act  provides  for  the  citation  before 
the  court  of  the  heir  at  law  of  the  testator  and  the  devisees  of  his  real 
estate ;  and  such  heir  and  devisees,  when  cited,  will  be  bound  by  the 
r*oAo-i  proceedings  ;(i>)  but  this  *occurs  only  when  a  contest  is  expected 
or  actually  takes  place.  In  all  ordinary  cases  a  will,  so  far  as 
it  affects  real  estate,  does  not  require  to  be  proved.1 

So  much,  then,  for  the  power  to  make  a  will  of  lands,  and  for  the 

(o)  Stat.  7  Will.  IV.  &  1  Vict.  c.  26,  s.  14. 

(p)  Stat.  7  Will.  IV.  &  1  Vict.  c.  26,  s.  15.  See  Gurney  v.  Gurney,  3  Drew.  208  ; 
Tempest  v.  Tempest,  2  Kay  &  J.  635. 

(?)  Sect.  16.  (r)  Sect.  17. 

(.s)  Stat.  6  &  7  Vict.  c.  85  ;   14  &  15  Vict.  c.  99,  amended  by  stat.  16  &  17  Vict.  c.  83. 

(/)  Stat.  6  &  7  Vict.  c.  85,  s.  1  ;   14  &  15  Vict.  c.  99,  s.  5. 

(u)  Stat.  20  &  21  Vict.  c.  77,  amended  by  stat.  21  &  22  Vict.  c.  95.  The  Court  of 
Probate  is  now  represented  by  the  Probate  Division  of  the  High  Court  of  Justice. 

(v)  Stat.  20  &  21  Vict.  c.  77,  ss.  61,  62,  63.  These  provisions  extend  only  to  Wills 
made  since  the  Wills  Act.     Campbell  v.  Lucy,  L.  R.,  2  Prob.  209. 

1  This  means,  of  course,  that  a  will  of  any  written  evidence  must  be  proved.     In 

I Is    'hies    not    require   to    be    regularly  Pennsylvania,  however,  the  formal  probate 

proved    and    admitted    to    probate    in    a  of  a  will  before    the  Register  of  Wills   is 

court  of  probate  ;  but  when  a  question  is  by  statute   made    conclusive,  unless    con- 

raised  as  to  the  title  to  the  devised  lands,  tested    within    five  years.     Purdon's  Dig. 

the  will   cannot  be  admitted   in  evidence  "  Decedents'    Estates,"    pi.    12  ;    Folmar's 

as   a    conveyance,  unless   duly  proved  as  Appeal,  18  P.  F.  Smith  482. 
required  by  law,  in   the   same  manner  as 


OF    A    WILL    OF    LANDS.  208 

formalities  with  which  it  must  be  accompanied.  A  will,  it  is  well  known, 
does  not  take  effect  until  the  decease  of  the  testator.  In  the  meantime, 
it  may  be  revoked  in  various  ways  ;  as,  by  the  marriage  of  either  a  man 
or  woman  ;(w)  though,,  before  the  Wills  Act,  the  marriage  of  a  man  was 
not  sufficient  to  revoke  his  will,  unless  he  also  had  a  child  born. (a;)  A 
will  may  also  be  revoked  by  burning,  tearing,  or  otherwise  destroying 
the  same,  by  the  testator,  or  by  some  person  in  his  presence  and  by  his 
direction,  with  the  intention  of  revoking  the  same.(?/)  But  the  Wills  Act 
enacts(2)  that  no  obliteration,  interlineation,  or  other  alteration,  made 
in  any  will  after  its  execution,  shall  have  any  effect  (except  so  far  as  the 
►words  or  effect  of  the  will,  before  such  alteration,  shall  not  be  apparent), 
unless  such  alteration  shall  be  executed  in  the  same  manner  as  a  will ; 
but  the  signature  of  the  testator,  and  the  subscription  of  the  witnesses, 
may  be  made  in  the  margin,  or  on  some  other  part  of  the  will,  opposite 
or  near  to  such  alteration,  or  at  the  foot  or  end  of  or  opposite  to  a  memo- 
randum referring  to  such  alteration,  and  written  at  the  *end,  or  r*9AQ-i 
some  other  part  of  the  will.  A  will  may  also  be  revoked  by 
any  writing,  executed  in  the  same  manner  as  a  will,  and  declaring  an 
intention  to  revoke,  or  by  a  subsequent  will  or  codicil, («)  to  be  executed 
as  before.1  And  where  a  codicil  is  added,  it  is  considered  as  part  of  the 
will ;  and  the  disposition  made  by  the  will  is  not  disturbed  further  than 
is  absolutely  necessary  to  give  effect  to  the  codicil. (6) 

The  above  are  the  only  means  by  which  a  will  can  now  be  revoked  ; 
unless,  of  course,  the  testator  choose  afterwards  to  part  with  any  of  the 
property  comprised  in  his  will,  which  he  is  at  perfect  liberty  to  do.  In 
this  case  the  will  is  revoked  as  to  the  property  parted  with,  if  it  does 
not  find  its  way  back  to  the  testator,  so  as  to  be  his  at  the  time  of  his 
death.  Under  the  statute  of  Hen.  VIII.  a  will  of  lands  was  regarded  in 
the  light  of  a  present  conveyance,  to  come  into  operation  at  a  future 

(iv)  Stat.  7  Will.  IV.  &  1  Vict.  c.  26,  s.  18.  "Except  a  will  made  in  exercise  of  a 
power  of  appointment,  when  the  real  or  personal  estate  thereby  appointed  would  not, 
in  default  of  such  appointment,  pass  to  his  or  her  heir,  customary  heir,  executor,  or 
administrator,  or  the  person  entitled,  or  his  or  her  next  of  kin,  under  the  Statute  of 
Distributions.''     In  the  goods  of  Fenwick,  Law  Rep.,  1  Court  of  Probate  319. 

(x)  1  Jarman  on  Wills  106,  1st  ed. ;  102,  2d  ed.j  114,  3d  ed.  See  Marston  v.  Roe  d. 
Fox,  8  Ad.  &  Ell.  14  (E.  C.  L.  R.  vol.  35). 

(y)  Stat.  7  Will.  IV.  &  1  Vict.  c.  26,  s.  20  ;  Andrew  v.  Motley,  12  C.  B.  N.  S.  514  (E. 
C.  L.  R.  vol.  104). 

(z)  Sect.  21.  (a)  Stat,  7  Will.  IV.  &  1  Vict.  c.  26,  s.  20. 

(b)  1  Jarman  on  Wills  160,  1st  ed. ;   146,  2d  ed. ;   162,  3d  ed.  - 


1  The   student  will   find   the   subject  of    the  note  to  Lawson  v.  Morrison,  2   Amer. 
the  revocation  of  wills  treated  in  detail  in     Lead.  Cases  487.  M. 


209 


OF    CORPOREAL    HEREDITAMENTS. 


time,  namely,  on  the  death  of  the  testator.  And  if  a  man,  having  made 
a  will  of  his  lands,  afterwards  disposed  of  them,  they  would  not,  on 
returning  to  his  possession,  again  become  subject  to  his  will,  without  a 
subsequent  republication  or  revival  of  the  will.(c)  But.  under  the  Wills 
Act,  no  subsequent  conveyance  shall  prevent  the  operation  of  the  will, 
with,  respect  to  such  devisable  estate  or  interest  as  the  testator  shall  have 
at  the  time  of  his  death.(cZ)  In  the  same  manner,  the  old  statute  was 
not  considered  as  enabling  a  person  to  dispose  by  will  of  any  lands,  ex- 
cept such  as  he  was  possessed  of  at  the  time  of  making  his  will ;  so  that 
lands  purchased  after  the  date  of  the  will  could  not  be  affected 
L  -  J  by  any  of  its  ^dispositions,  but  descended  to  the  heir  at  law.(e)* 
This  also  is  altered  by  the  Wills  Act,  which  enacts(J)  that  every  will 
shall  be  construed,  with  reference  to  the  property  comprised  in  it,  to 
speak  and  take  effect  as  if  it  had  been  executed  immediately  before  the 
death  of  the  testator,  unless  a  contrary  intention  shall  appear  by  the 
will.1     So  that  every  man  may  now  dispose,  by  his  will,  of  all  such  landed 

(c)  1  Jarrnan  on  Wills  130,  180,  1st  ed. ;   122,  164,  2d  ed. ;   136,  183,  3d  ed. 

(d)  Stat.  7  Will.  IV.  and  1  Vict.  c.  26,  s.  23. 

(e)  1  Jarrnan  on  Wills  587,  1st  ed. ;  548,  2d  ed.;  610,  3d  ed. 
(/)  Sect.  24. 

to  a  parting  with  that  held  at  the  execu- 
tion of  the  will,  and  the  acquisition  of  a 
new  interest  in  the  same  land,  may  there- 
fore defeat  the  will  in  the  former  way, 
even  when  it  can  no  longer  do  so  in  the 
latter.  The  legislature  of  New  York  ac- 
cordingly further  provided,  as  parliament 
has  more  recently  done  in  England,  that 
a  conveyance,  settlement,  deed,  or  other 
act  of  a  testator,  by  which  his  estate  or 
interest  in  property  previously  devised  or 
bequeathed  is  altered  but  not  wholly 
divested,  shall  not  be  deemed  a  revocation, 
but  the  devise  or  bequest  shall  pass  the 
resulting  estate  or  interest,  which  would 
otherwise  descend  to  the  testator's  heirs, 
or  go  to  his  next  of  kin,  unless  an  opposite 
intention  is  declared  in  the  instrument  by 
which  the  alteration  of  the  estate  is  made. 
The  doctrine  of  equity  by  which  a  contract 
for  the  sale  of  land  is  treated  as  an  equita- 
ble revocation  of  a  prior  devise,  is  done 
away  with  by  a  further  provision,  that  a 
contract  for  the  sale  of  property  previously 
devised  or  bequeathed  shall  not  be  deemed 
a  revocation  either  at  law  or  in  equity, 
but  the  property  shall  pass  to  the  derisee, 


1  A  similar  change  has  been  made  in 
man}7  parts  of  this  country,  and  after- 
acquired  lands  brought  within  the  reach 
of  a  prior  devise.  Thus  in  Pennsylvania, 
the  act  of  8th  April,  1833,  provides  that 
land  acquired  by  the  testator  after  making 
his  will  shall  pass  by  a  general  devise, 
unless  a  contrary  intention  is  apparent  on 
the  face  of  the  will,  while  the  Revised 
Statutes  of  New  York  declare  that  every 
devise  of  all  the  testator's  real  estate,  or 
which  denotes  an  intention  to  devise  it, 
shall  be  held  to  pass  all  the  real  estate 
which  he  is  entitled  to  devise  at  the  time 
of  his  death. 

Tlic  effect  of  these  statutes  on  the  rule 
that  a  conveyance  which  works  an  altera- 
tion of  the  estate  is  a  revocation  of  a  prior 
devise,  is  not  altogether  clear  ;  for  such  a 
revocation  may  result  either  from  the  effect 
of  the  conveyance,  in  putting  the  estate 
beyond  the  scope  of  the  testator's  purpose, 
or  in  showing  that  his  purpose  is  changed 
in  regard  to  the  estate  ;  being  in  the  one 
case  a  pure  revocation,  and  in  the  other 
more  properly  an  ademption.  An  altera- 
tion of  the  estate  devised,  which  amounts 


OF   A   WILL    OF    LANDS. 


210 


property,  or  real  estate,  as  he  may  hereafter  possess,  as  well  as  that 
which  he  now  has.  Again,  the  result  of  the  old  rule,  that  a  will  of 
lands  was  a  present  conveyance,  was  that  a  general  devise  by  a  testator 


subject  to  the  remedy  of  the  vendee  for  a 
specific  performance. 

Another  section  of  the  same  law  de- 
clares that  no  charge  or  incumbrance  for 
the  purpose  of  a  security  on  real  or  per- 
sonal property  shall  take  effect  as  a  revo- 
cation. This  provision,  however,  would 
seem  to  be,  if  not  superfluous,  nothing 
more  than  an  embodiment  of  the  well- 
settled  doctrine  of  equity  in  the  form  of 
law.     2  American  Leading  Cases  532. 

The  legislatures  of  many  of  the  States  of 
this  country  have  contented  themselves 
with  giving  the  testator  power  to  devise 
after-acquired  lands,  and  have  left  the 
question  when  and  under  what  circum- 
stances he  shall  be  held  to  have  exercised 
it,  to  be  determined  by  the  courts,  on 
general  principles  of  construction.  This 
renders  it  important  to  determine  when  a 
will  relates  prima  facie  to  the  state  of 
things  which  exists  at  the  death  of  the 
testator,  and  when  to  that  which  exists 
when  it  goes  into  operation. 

Devises  of  real  estate  are  said  to  speak 
from  their  date,  and  bequests  of  personalty 
from  the  death  of  the  testator;  or,  in  other 
words,  devises  are  construed  as  referring 
to  the  state  of  things  which  prevailed  at 
the  time  when  the  testator  executed  them, 
and  bequests  to  that  which  exists  at  his 
death. 

In  accordance  with  this  rule  of  con- 
struction, it  is  held,  on  the  one  hand,  that 
a  residuary  or  general  bequest  of  person- 
alty passes  all  that  the  testator  has  when 
he  dies  which  is  not  otherwise  disposed 
of,  whether  acquired  subsequently  to  the 
execution  of  the  will  or  not ;  while  it  has 
been  said,  on  the  other  hand,  that  even  if 
after-purchased  lands  were  within  the 
devising  power  given  by  the  statute  of 
Henry  VIII.,  they  would  notwithstanding 
lie  prima  facie  without  the  disposing  pur- 
pose of  the  devisor.  Harwood  v.  Good- 
right,  Cowper  90. 

It  was  accordingly  decided  in  Smith  v. 
Edrington,  8  Cranch  66,  and  Allen  v.  Har- 


rison, 3  Call  264,  that  a  devise  will  be 
held,  in  the  absence  of  expressions  to  the 
contrary,  to  relate  solely  to  that  which 
the  devisor  has  at  the  time  of  making  his 
will,  and  not  to  what  he  acquires  subse- 
quently. Hence,  although  the  power  to 
devise  was  extended  by  statute  in  Vir- 
ginia as  early  as  the  year  1785  to  lands  ac- 
quired by  the  testator  after  the  date  of  the 
will,  he  was  still  presumed  to  refer  only 
to  those  which  he  had  when  it  was  ex- 
ecuted, unless  he  manifested  an  opposite 
and  more  enlarged  intention.  The  same 
point  was  decided  in  Kentucky  by  the 
Court  of  Appeals,  under  the  statute  of  that 
State,  which  is  copied  from  that  of  Vir- 
ginia. Warner  v.  Swearingen,  6  Dana  194. 
The  opinion  delivered  in  this  case  seems 
to  have  been  in  some  measure  founded  on 
a  misapprehension  of  the  distinction  be- 
tween the  effect  of  a  specific  and  a  gen- 
eral or  residuary  bequest  on  leaseholds 
subsequently  devised  or  assigned  to  the 
devisor,  but  was  followed  in  the  Circuit 
Court  in  Marshall  v.  Porter,  10  B.  Monroe  1. 
It  must,  however,  be  remembered  that 
the  rule  which  restricts  the  purpose  of  a 
devise  to  the  period  of  its  execution,  as 
well  as  that  which  construes  a  bequest  as 
referring  to  the  death  of  the  testator,  is  a 
mere  general  presumption,  which  varies 
with  circumstances,  and  will  yield  wholly 
to  proof  of  au  opposite  intention.  Thus 
specific  legacies  of  personal  property  pass 
simply  the  interest  held  by  the  donor  at 
the  time  when  they  are  made,  and  will  not 
only  be  defeated  by  a  change  in  its  nature, 
but  fail  to  take  effect  on  a  subsequent  in- 
terest in  the  same  property  ;  and  so  far  is 
this  carried,  that  a  bequest  of  a  leasehold 
estate  in  specific  land  will  not  pass  the  es- 
tate acquired  under  a  subsequent  lease  of 
the  same  property :  Slatter  v.  Noton,  16 
Vesey  197;  nor  even  under  a  subsequent 
renewal  of  the  original  lease,  in  pursu- 
ance, of  its  covenants,  unless  such  is  shown 
to  have  been  the  intention  of  the  testator  : 
James  v.  Dean,  11  Vesey  382. 


210 


OF    CORPOREAL    HEREDITAMENTS. 


of  the  residue  of  his  lands  was,  in  effect,  a  specific  disposition  of  such 
lands  and  such  only  as  the  testator  then  had,  and  had  not  left  to  any 
one  ehe.(g)     A  general  residuary  devisee  was  a  devisee  of  the  lands  not 

{g)  1  Jarraan  on  Wills  587,  1st  ed. ;  548,  2d  ed.  ;  610,  3d  ed. 


As,  however,  all  wills,  whether  of  real 
or  personal  property,  are  intended  not  to 
take  effect  till  death,  the  real  meaning  of 
the  testator  would  no  doubt  be  best  an- 
swered by  reading  them  as  referring  to 
that  period,  unless  there  is  something  to 
raise  an  opposite  inference.  This  was  the 
rule  of  the  civil  law,  and  would  seem  to 
be  that  of  sound  and  general  reason;  and 
it  was  accordingly  held  in  Gold  v.  Judson, 
21  Conn.  616,  and  Canfield  v.  Boswick,  Id. 
'hat  where,  as  in  Connecticut,  the 
statute  law  puts  real  and  personal  property 
equally  within  the  reach  of  a  prior  will, 
••  it  will  speak  prima  facie  as  to  both, 
liom  the  death  of  the  testator,  unless  its 
language  indicate  the  contrary  intention. 
This  may  be  by  words  of  description,  or 
by  reference  to  an  actual  existing  state 
Ol  things:  1  Jarman  on  Wills  277;  and 
hence  a  devise  of  personal  property  gene- 
rally carries  all  the  testator  had  at  the 
time  of  his  death.  The  same  would  have 
lieeii  true  of  real  estate,  had  it  not  been 
held  thai  in  England  a  devise-  of  real 
estate  was  considered  to  be  in  the  nature 
::  appointment,  which  could  not  be 
made  in  relation  to  future-acquired  estate. 
The  rule  was  the  same  here  until  our  late 
statute  was  passed,  but  the  rule  has  been 
abolished  here  and  in  England,  and  there 
i-  qow  no  difference  between  real  and  per- 
SOnal  estate." 

But  whatever  may  be  the  reasonableness 
ut  this  conclusion,  it  is  at  variance  with 
the  opinion  ot  the  Supreme  Court  of  the 
United  States  in  Smith  v.  Edrington,  as 
well  as  with  that  of  the  Court  of  Appeals 
(,t  Kentucky  in  Warner  v.  Swearingen ; 
and  i'  is,  to  Bay  the  least,  doubtful  whether 
the  extension  of  the  power  of  devise  to 
after-acquired  lands  has  any  effect  on  the 
rule  which  interprets  the  intention  of  the 
jor,  as  relating  solely  to  that  which 
I,,,  has  when  the  will  is  made.  It  has 
been   Been  that  the  act  of  1  Victoria  pro- 


vides for  the  difficulty  by  enacting  that 
all  wills  shall  speak  as  if  they  had  been 
executed  immediately  before  the  death  of 
the  testator,  unless  a  contrary  intention  is 
apparent.  The  same  rule  has  also  been 
introduced  in  Maryland.  And  the  recent 
legislation  of  New  York  and  Pennsylvania 
fills  the  gap  left  by  its  absence,  by  pro- 
viding, in  the  former  State,  that  a  devise 
"of  the  testator's  real  estate,  or  denoting  an 
intention  to  devise  all  his  real  property," 
shall  be  construed  to  pass  all  the  real  es- 
tate which  he  has  at  the  time  of  his  death  ; 
and  in  the  latter,  that  after-acquired  land 
shall  pass  by  a  general  devise,  unless  a 
contrary  intention  be  manifest  on  the  face 
of  the  will.  This  latter  provision  does  not 
meet  those  cases  in  which  the  testator  has 
specifically  devised  land  in  which  he  has 
nothing  until  after  the  execution  of  his 
will,  or  alters  the  estate  which  he  has  be- 
fore his  death,  when  the  specific  devise 
would  necessarily  fail,  and  the  land  prob- 
ably descend  to  the  heir,  notwithstanding 
the  existence  of  a  general  or  residuary  de- 
vise. This  contingency  is  partially  pro- 
vided for  in  New  York  by  an  enactment 
thai  an  alteration  of  estate  shall  only  be  a 
revocation  pro  tanto,  but  the  effect  of  a 
specific  devise  of  land  to  which  the  tes- 
tator has  no  title,  or  a  defective  title,  or  a 
title  subsequently  acquired,  would  seem 
to  be  an  open  question  there,  as  well  as  in 
Pennsylvania,  which  needs  the  interpo- 
sition of  the  legislature  to  solve  it,  and 
protect  the  interest  of  devisees  and  the 
purpose  of  the  testator. 

The  question  whether  a  devise  will  pass 
after-acquired  land,  where  the  devising 
power  is  given  by  statute  after  the  will  is 
executed,  but  before  the  death  of  the  tes- 
tator is  analogous  to  that  last  considered, 
and  like  it  has  received  different  and  in- 
consistent solutions.  It  was  decided  in  the 
negative  in  Brewster  v.  McCall,  15  Conn. 
274,  and  Mullock  v.  Souder,  5  W.  &  S.  198 ; 


OF    A    WILL    OF    LANDS.  210 

otherwise  left,  exactly  as  if  such  lands  had  been  given  him  by  their 
names.  The  consequence  of  this  was  that  if  any  other  persons,  to  whom 
lands  were  left,  died  in  the  lifetime  of  the  testator,  the  residuary  devisee 
had  no  claim  to  such  lands,  the  gift  of  which  thus  failed;  but  the  lands 
descended  to  the  heir  at  law.  This  rule  is  altered  by  the  act,  under 
which, (A)  unless  a  contrary  intention  appear  by  the  will,  all  real  estate 
comprised  in  any  devise,  which  shall  fail  by  reason  of  the  death  of  the 
devisee  in  the  lifetime  of  the  testator,  or  by  reason  of  such  devise  being 
contrary  to  law,  or  otherwise  incapable  of  taking  effect,  shall  be  included 
in  the  residuary  devise  (if  any)  contained  in  the  will. 

This  failure  of  a  devise,  by  the  decease  of  the  devisee  in  the  testator's 
lifetime,  is  called  a  lapse  ;  and  this  lapse  is  not  prevented  by  the  lands 
being  given  to  the  devisee  and  his  heirs  ;  and  in  the  same  way,  before 
the  *  Wills  Act,  a  gift  to  the  devisee  and  the  heirs  of  his  body 
would  not  carry  the  lands  to  the  heir  of  the  body  of  the  devisee,  L  "  -I 
in  case  of  the  devisee's  decease  in  the  lifetime  of  the  testator.^')  For, 
the  terms  heirs  and  heirs  of  the  body  are  words  of  limitation  merely ; 
that  is,  they  merely  mark  out  the  estate  which  the  devisee,  if  living  at 
the  testator's  death,  would  have  taken, — in  the  one  case  an  estate  in  fee 
simple,  in  the  other  an  estate  tail ;  and  the  heirs  are  no  objects  of  the 
testator's  bounty,  further  than  as  connected  with  their  ancestor.(&)  Two 
cases  have,  however,  been  introduced  by  the  Wills  Act,  in  w7hich  the 
devise  is  to  remain  unaffected  by  the  decease  of  the  devisee  in  the  testator's 
lifetime.  The  first  case  is  that  of  a  devise  of  real  estate  to  any  person 
for  an  estate  tail ;  in  which  case,  if  the  devisee  should  die  in  the  life- 
time of  the  testator,  leaving  issue  who  would  be  inheritable  under  such 
entail,  and  any  such  issue  shall  be  living  at  the  death  of  the  testator, 
such  devise  shall  not  lapse,  but  shall  take  effect  as  if  the  death  of  such 
person  had  happened  immediately  after  the  death  of  the  testator,  unless 
a  contrary  intention  shall  appear  by  the  will.(Z)  The  other  case  is  that 
of  the  devisee,  being  a  child  or  other  issue  of  the  testator,  dying  in  the 
testator's  lifetime  and  leaving  issue,  any  of  whom  are  living  at  the  testa- 

(/<)  Sect.  25.  (?)  Hodgson  and  Wife  v.  Ambrose,  I  Dougl.  337. 

(k)   Plowd.  345;   1  Rep.  105;   1  Jarm.  Wills  293,  lsted. ;   277,  2d  ed. ;  314,  3d  ed. 
(/)   Stat.  7  Will.  IV.  &  1  Vict.  c.  26,  s.  32. 

[Gable's  Exrs.  v.  Daub,  4  Wright  217.  M.]  ;  held  to  be  essentially  ambulator}',  and  to 

and   the  point  was  decided  the  other  way  depend  for  their  effect  on  the  intention  of 

in  Bishop  v.  Bishop,  4  Hall  138;  Gushing  the  testator  at  the   time  of  his  death,  as 

v.  Aylwin,  12  Metcalf  169,  and  Loveren  v.  ascertained  and  defined  by  the  rules  of  law 

Lamprey,  2   Foster  434,  where  wills  were  then  existing.  R. 

13 


211  OF    CORPOREAL    HEREDITAMENTS. 

tor's  death.  In  this  case,  unless  a  mere  life  estate  shall  have  been  left 
to  the  devisee,  the  devise  shall  not  lapse,  but  shall  take  effect  as  in  the 
former  case.(w)1 

*The  construction  of  wills  is  the  next  object  of  our  attention. 
L  -^-J  jn  construing  wills,  the  courts  have  always  borne  in  mind  that 
a  testator  may  not  have  had  the  same  opportunity  of  legal  advice  in 
drawing  his  will  as  he  would  have  had  in  executing  a  deed.  And  the 
first  great  maxim  of  construction  accordingly  is,  that  the  intention  of  the 
testator  ought  to  be  observed.(ra)  The  decisions  of  the  courts,  in  pursu- 
ing this  maxim,  have  given  rise  to  a  number  of  subsidiary  rules,  to  be 
applied  in  making  out  the  testator's  intention  ;  and,  when  doubts  occur, 
these  rules  are  always  made  use  of  to  determine  the  meaning ;  so  that 
the  true  legal  construction  of  a  will  is  occasionally  different  from  that 
which  would  occur  to  the  mind  of  an  unprofessional  reader.  Certainty 
cannot  be  obtained  without  uniformity,  nor  uniformity  without  rule. 
Rules,  therefore,  have  been  found  to  be  absolutely  necessary ;  and  the 
indefinite  maxim  of  observing  the  intention  is  now  largely  qualified  by 
the  numerous  decisions  which  have  been  made  respecting  all  manner  of 
doubtful  points,  each  of  wbich  decisions  forms  or  confirms  a  rule  of  con- 
struction, to  be  attended  to  whenever  any  similar  difficulty  occurs.  It 
is,  indeed,  very  questionable  whether  this  maxim  of  observing  the  in- 
tention, reasonable  as  it  may  appear,  has  been  of  any  service  to  testa- 
tors ;  and  it  has  certainly  occasioned  a  great  deal  of  trouble  to  the 
courts.     Testators   have   imagined  that  the   making  of  wills,  to  be  so 

(m)  Sect.  33.  See  Principles  of  the  Law  of  Personal  Property,  p.  291,  4th  ed. ;  324. 
5th  ed. ;  330,  6th  ed. ;  351,  352,  7th  ed. ;  365,  8th  ed. ;  387,  9th  ed. ;  Johnson  v.  John- 
son, 3  Hare  157  ;  Eccles  v.  Cheyne,  2  Kay  &  J.  676  ;  Griffith  v.  Gale,  12  Sim.  354. 

(«)  30  Ass.  183  a;  Year  Book,  9  Hen.  VI.  24  b;  Litt.  s.  586;  Perkins,  s.  555;  2 
Black.  Com.  381. 


1  In  Pennsylvania  by  the  act  of  1833  no  setts,  Maryland,  South  Carolina,  Virginia, 

devise  or  legacy  in  favor  of  a  lineal   de-  Georgia,    and    probably   other    States.     4 

scendant  shall  lapse  by  the  death  of  the  Kent's  Comm.  541  ;  Jarman  on  Wills  (Per- 

devisee   in  the  lifetime  of  the  testator,  if  kins's  Ed.)  311.  M. 

such   devisee   shall  leave  issue  surviving         But  except  as  altered  by  this  legislation 

the  testator;  and  by  act  of  1844  this  is  ex-  the   common  law  with   respect  to  lapsed 

tended  to  devises   to  a  brother  or  sister,  devises  and  bequests  remains  in  force.  Un- 

or  the  children  of  a  deceased  brother  or  less  otherwise  provided  in  the  will,  lapsed 

sister,  where  the  testator  leaves  no  lineal  bequests  of  personalty  go  to  the  residuary 

descendants,  saving  in  all  cases  the  right  legatee,  and  lapsed  devises  go  to  the  heirs 

of  the  testator  to  direct  otherwise.     Pur-  of  the   testator.     Massey's  Appeal    (Sup. 

don's    Dig.,    Wills,    pi.    14,    15.      Similar  Ct.  March,  1879),  6  Weekly  Notes  529. 
statutes  have  been  passed  in  Massachu- 


OF    A   WILL    OF    LANDS.  212 

leniently  interpreted,  is  a  matter  to  which  anybody  is  competent;  and 
the  consequence  has  been  an  immense  amount  of  litigation,  on  all  sorts 
of  contradictory  and  nonsensical  bequests.  An  intention,  moreover,  ex- 
pressed clearly  enough  for  ordinary  apprehensions,  has  often  been  de- 
feated by  some  technical  *rule,  too  stubborn  to  yield  to  the  rs|£91o-i 
general  maxim,  that  the  intention  ought  to  be  observed.  Thus,  *-  -• 
in  one  case,(o)  a  testator  declared  his  intention  to  be,  that  his  son  should 
not  sell  or  dispose  of  his  estate  for  longer  time  than  his  life,  and  to  that 
intent  he  devised  the  same  to  his  son  for  life,  and  after  his  decease,  to 
the  heirs  of  the  body  of  his  said  son.  The  Court  of  King's  Bench  held,  as 
the  reader  would  no  doubt  expect,  that  the  son  took  only  an  estate  for 
his  life ;  but  this  decision  was  reversed  by  the  Court  of  Exchequer 
Chamber,  and  it  is  now  well  settled  that  the  decision  of  the  Court  of 
King's  Bench  was  erroneous.(jo)  The  testator  unwarily  made  use  of 
technical  terms,  which  always  require  a  technical  construction.  In 
giving  the  estate  to  the  son  for  life,  and  after  his  decease  to  the  heirs  of 
his  body,  the  testator  had,  in  effect,  given  the  estate  to  the  son  and  the 
heirs  of  his  body.  Now  such  a  gift  is  an  estate  tail ;  and  one  of  the 
inseparable  incidents  of  an  estate  tail  is  that  it  may  be  barred  in  the 
manner  already  described. (q)  The  son  was,  therefore,  properly  entitled, 
not  to  an  estate  for  life  only,  but  to  an  estate  tail,  which  would  at  once 
enable  him  to  dispose  of  the  lands  for  an  estate  in  fee  simple.  In  con- 
trast to  this  case  are  those  to  which  we  have  before  adverted,  in  the 
chapter  on  estates  for  life.(r)  In  those  cases,  an  intention  to  confer  an 
estate  in  fee  simple  was  defeated  by  a  construction  which  gave  only  an 
estate  for  life ;  a  gift  of  lands  or  houses  to  a  person  simply,  without 
words  to  limit  or  mark  out  the  estate  to  be  taken,  was  held  to  confer  a 
mere  life  interest.  But,  in  such  cases,  the  courts,  conscious  of  the  pure 
technicality  of  the  rule,  were  continually  striving  to  avert  the  hardship 
of  its  effect,  by  laying  hold  of  the  most  minute  variations  *of  r  #914-1 
phrase,  as  matter  of  exception.  Doubt  thus  took  the  place 
of  direct  hardship,  till  the  legislature  thought  it  time  to  interpose.  A 
remedy  is  now  provided  by  the  act  for  the  amendment  of  the  laws  with 
respect  to  wills,(s)  which  enacts(i)  that  where  any  real  estate  shall  be 
devised  to  any  person,  without  any  words  of  limitation,  such  devise  shall 
be  construed  to  pass  the  fee  simple,  or  other  the  whole  estate  or  interest, 
which  the  testator  had  power  to  dispose  of  by  will,  in  such  real  estate, 

(o)  Perrin  v.  Blake,  4  Burr.  2579  ;  1  Sir  Wm.  Bla.  672  ;   1  Dougl.  343. 
(p)  Fearn,  Cont.  Rem.  147  to  172.  (q)  Ante,  p.  46. 

(r)  Ante,  p.  19.  (*)  7  Will.  IV.  &  1  Vict,  c  26. 

(t)  Sect.  28. 


214  OF    CORPOREAL    HEREDITAMENTS. 

unless  a  contrary  intention  shall  appear  by  the  will.1  In  these  cases, 
therefore,  the  rule  of  law  has  been  made  to  give  way  to  the  testator's 
intention ;  but  the  case  above  cited,  in  which  an  estate  tail  was  given 
when  a  life  estate  only  was  intended,  is  sufficient  to  show  that  rules  still 
remain  which  give  to  certain  phrases  such  a  force  and  effect  as  can  be 
properly  directed  by  those  only  who  are  well  acquainted  with  their 
power. 

Another  instance  of  the  defeat  of  intention  arose  in  the  case  of  a  gift 
of  lands  to  one  person,  "and  in  case  he  shall  die  without  issue,"  then  to 
another.  The  courts  interpreted  the  words  "  in  case  he  shall  die  with- 
out issue,"  to  mean  "in  case  of  his  death,  and  of  the  failure  of  his 
issue ;"  so  that  the  estate  was  to  go  over  to  the  other,  not  only  in  case 
of  the  death  of  the  former,  leaving  no  issue  living  at  his  decease,  but  also 
in  the  event  of  his  leaving  issue,  and  his  issue  afterwards  failing,  by  the 
decease  of  all  his  descendants.  The  courts  considered  that  a  man  might 
properly  be  said  to  be  "  dead  without  issue,"  if  he  had  died  and  left 
issue,  all  of  whom  were  since  deceased;  quite  as  much  as  if  he  had  died 
and  left  no  issue  behind  him.  In  accordance  with  this  view,  they  held 
such  a  gift  as  above  mentioned  to  be,  by  implication,  a  gift  to  the  first 

9  -,  person  and  his  issue,  with  a  *remainder  over,  on  such  issue 
*-  "  failing,  to  the  second.     This  was,  in  fact,  a  gift  of  an  estate  tail 

to  the  first  party  ;(u)  for  an  estate  tail  is  just  such  an  estate  as  is 
descendible  to  the  issue  of  the  party,  and  will  cease  when  he  has  no 
longer  heirs  of  his  body,  that  is,  when  his  issue  fails.  Had  there  been 
no  power  of  barring  entails,  this  would  no  doubt  have  been  a  most  effec- 
tual way  of  fulfilling  to  the  utmost  the  testator's  intention.  But,  as  we 
have  seen,  every  estate  tail  in  possession  is  liable  to  be  barred,  and 
turned  into  a  fee  simple,  at  the  will  of  the  owner.  With  this  legal  inci- 
dent of  such  an  estate,  the  courts  considered  that  they  had  nothing  to 
do  ;  and,  by  this  construction,  they  accordingly  enabled  the  first  devisee 
to  bar  the  estate  tail  which  they  adjudged  him  to  possess,  and  also  the 
remainder  over  to  the  other  party.  He  thus  was  enabled  at  once  to 
acquire  the  whole  fee  simple,  contrary  to  the  intention  of  the  testator, 
who  most  probably  had  never  heard  of  estates  tail,  or  of  the  means 
of  barring  them.2     This  rule  of  construction  had  been  so  long  and  firmly 

(u)  1  Jarm.  Wills  488,  1st  ed. ;  464,  2d  ed. ;  517,  3d  ed. ;  Machell  v.  Weeding,  8 
Sim.  4,  7. 

1  Such  is  also  the  law  in  many  of  the  B  In  the  case  of  a  devise  to  A.  and  his 
States  of  this  country.  See  ante,  p.  20,  heirs,  and  if  he  die  without  issue,  re- 
note  1.  mainder  to  B.,  if  the  terms  of  the  will  were 


OF   A    WILL    OF    LANDS. 


215 


established  that  nothing  but  the  power  of  parliament  could  effect  an 
alteration.  This  was  done  by  the  act  for  the  amendment  of  the  laws 
with  respect  to  wills,  which  direct^)  that  in  a  will  the  words  "  die  with- 
out issue  "  and  similar  expressions,  shall  be  construed  to  mean  a  want 
or  failure  of  issue  in  the  lifetime  or  at  the  death  of  the  party,  and  not 
an  indefinite  failure  of  issue;  unless  a  contrary  intention  shall  appear 
by  the  will,  by  reason  of  such  person  having  a  prior  estate  tail,  or  of  a 
preceding  gift  being,  without  any  implication  arising  from  such  words,  a 
gift  of  an  estate  tail  to  such  person  or  issue,  or  otherwise.1 
(z)  Stat.  7  Will.  IV.  &  1  Vict.  c.  26,  s.  29. 


strictly  followed,  A-  would  take  an  estate 
in  fee  simple,  which  would  render  the  lim- 
itation to  B.  void  as  a  remainder  (because 
a  remainder  cannot  be  created  after  an 
estate  in  fee  simple),  and  void  also  as  an 
executory  devise,  because  it  would  trans- 
gress the  rule  against  perpetuities,  as  re- 
stricting alienation  until  after  an  indefinite 
failure  of  issue.     But  as  the  testator  has 
shown  an  intention  to  benefit  the  heirs  of 
A.,  as  also  the  remainder-man,  courts  re- 
strict the  estate  limited  to  A.  to  an  estate 
tail,  upon  which    the   limitation    to    B.  in 
remainder  is  good,  as  the  failure  of  issue 
is  the  regular  limit  to  an  estate  tail,  and 
it  takes  effect  as  a  remainder  under  the 
operation  of  the  rule  that  wherever  a  lim- 
itation can  take  effect  as  a  remainder,  it 
shall  never  operate  as  an  executory  devise, 
while  the  rule  against  perpetuities  is,  at 
the  same  time,  observed,  because  the  right 
to  suffer  a  common  recovery  is  the  insep- 
arable incident  to  an  estate  tail,  and  the 
restriction  upon  alienation    is,  therefore, 
determinable  at  the  option  of  the  tenant 
in  tail.     Thus  the  rule  against  perpetuities 
is,  in  this. instance,  avoided  by  decreasing 
the  estate  of  the  devisee  from  a  fee  simple 
to  an  estate  tail.     Doe  d.  Ellis  v.  Ellis,  9 
East  382;  Tenny  d.  Agar  v.  Agar,  12  East 
252  ;   Romilly  v.  James,   6   Taunton  263  ; 
Machell  v.  Weeding,  8  Simons  4;  Middles- 
worth  v.  Collins,  8  Leg.  Int.   11;  Eichel- 
berger  v.  Barnitz,  9  Watts  450.     On   the 
other  hand,  an  estate  to  A.  for  life,  and  if 
he  die  without  issue,  remainder  to  B.,  is, 
for  the  same  reason,  increased  to  an  estate 


tail,  for,  as  an  executory  devise,  the  limit- 
ation to  B.  would  be  equally  void  as  in 
the  last  case,  and  for  the  same  reason. 
Sonday's  Case,  9  Coke,  127  b  ;  Langley  v. 
Baldwin,  I  P.  Wms.  759  ;  Doe  d.  Bean  v. 
Halley,  8  Term.  5  ;  Attorney-General  v. 
Bayley,  2  Brown's  Ch.  540;  Stanley  v. 
Lennard,  1  Eden  87  ;  Machell  v.  Weeding, 
8  Simons  4  ;  George  v.  Morgan,  4  Harris 
95.  In  neither  of  the  cases  thus  put  by 
way  of  illustration  is  the  contingency  that 
A.  may  not  bar  the  entail  by  a  recovery 
allowed  to  have  an  effect,  for  the  circum- 
stance of  the  estate  tail  being  optionally 
alienable  by  means  of  a  common  recovery 
prevents  the  ulterior  limitation  from  being 
a  perpetuity.  "• 

i  It  is  well  settled  that  a  devise  in  fee 
will  be  restricted,  and  a  devise  for  life  en- 
larged to  an  estate   tail,  by  a  gift  over  in 
case  the  devisee  die  without  issue,  unless 
there  is   something  to  justify  a    different 
construction.     Clarke  v.  Baker,  3  S.  &  R. 
470  ;  Eichelberger  v.  Barnitz,  9  Watts  447  ; 
Stoever  v.  Stoever,  9  S.  &  R.  434 ;  Welsh 
v.  Elliott,  13  Id.  200;  McCartney  v.  Daw- 
son,  1  Wharton  4  ;  Lapsley  v.  Lapsley,  9 
Barr  130 ;  Eby  v.  Eby,  5  Id.  463  ;  Vaughan 
v.  Dickes,  8  Harris  309  ;  George  v.  Morgan, 
4  Id   95  ;  Tetor  v.  Tetor,  4  Barbour's  S.  C. 
419  ;  Jackson  v.  Billinger,  18  Johnson  368  ; 
Lion  v.  Burtiss,  20  Id.  483  ;  2  Cowen  535  ; 
Lilibridge  v.  Adie,   1  Mason   224  ;    Ide  v. 
Ide,  5  Mass.  200;   Hawley  v.  Northampton, 
8  Id.  3  ;  Hurlbert-v.  Emerson,   16  Id.  241; 
Watkins  v.  Seers,  3  Gill  492  ;  Moorhouse 
v.  Cotheal,  1  Zabriskie  480  ;  Den  v.  Small, 


215 


OF    CORPOREAL    HEREDITAMENTS. 


From  what  lias  been  said,  it  will  appear  that,  before  the  above- 
mentioned  alteration,  an  estate  tail  might  have  *been  given  by 
*-  -■  will,  by  the  mere  implication  arising  from  the  apparent  inten- 
tion of  the  testator  that  the  land  should  not  go  over  to  any  one  else,  so 
long  as  the  first  devisee  had  any  issue  of  his  body.  In  the  particular 
class  of  cases  to  which  we  have  referred,  this  implication  is  now  excluded 
by  express  enactment.  But  the  general  principle  by  which  any  kind  of 
estates  may  be  given  by  will,  whenever  an  intention  so  to  do  is  expressed 
or  clearly  implied,  still  remains  the  same.  In  a  deed,  technical  words 
are  always  required ;  to  create  an  estate  tail  by  a  deed,  it  is  necessary, 
as  we  have  seen,(  y)  that  the  word  heirs,  coupled  with  words  of  'procrea- 
tion, such  as  heirs  of  the  body,  should  be  made  use  of.  So,  we  have  seen 
that,  to  give  an  estate  in  fee  simple,  it  is  necessary,  in  a  deed,  to  use  the 
word  heirs  as  a  word  of  limitation,  to  limit  or  mark  out  the  estate.  But 
in  a  will,  a  devise  to  a  person  and  his  seed, {z)  or  to  him  and  his  issue,(a) 
and  many  other  expressions,  are  sufficient  to  confer  an  estate  tail ;  and 

{y)  Ante,  p.  144.  (z)  Co.  Litt.  9  b  ;  2  Black.  Com.  115. 

(a)  Martin  v.  Swannell,  2  Beav.  249  ;  2  Jarm.  on  Wills  329,  1st  ed.     See,  however,  2 
Jarm.  on  Wills  347,  2d  ed. ;  388,  3d  ed. 


1  Spencer  151  ;  Waples  v.  Harmun,  1  Har- 
rington 223  ;  Deboe  v.  Lowen,  8  B.  Monroe 
616.  When,  however,  there  is  anything  in 
the  words  of  the  gift  or  limitation,  or  in 
the  context,  to  rebut  this  construction,  and 
show  that  the  testator  meant  a  failure  of 
issue  in  the  lifetime  of  the  first  taker,  in- 
stead of  an  indefinite  failure,  it  will  be  re- 
jected, and  the  limitation  over  construed 
as  an  executory  devise  in  defeasance  of  a 
fee  simple,  and  not  as  a  remainder  sus- 
tained by  an  estate  tail.  Hauer  v.  Sheetz, 
3  Binney  532  ;  Holmes  v.  Holmes,  5  Id.  252  ; 
Langley  v.  Heald,  7  W.  &  S.  96  ;  Arnold  v. 
Buffum,  2  Mason  208;  Johnson  v.  Currin, 
10  Barr  498  ;  Williams  v.  Caston,  1  Strob- 
hart  130;  Hall  v.  Chaffee,  14  New  Hamp- 
shire 215  ;  Doe  v.  Taylor,  2  Southard  413  ; 
Richardson  v.  Noyes,  2  Mass.  56 ;  Hill  v. 
Hill,  4  Barbour's  S.  C.  419  ;  Heerd  v.  Hor- 
ton,  1  Denio  165  ;  De  Haas  v.  Bunn,  2  Barr 
335;  Den  v.  Coxe,  3  Dev.  394;  Pells  v. 
Brown,  Croke  Car.  590  ;  Porter  v.  Bradley, 
3  Term  143  ;  Roe  v.  Jeffrey,  7  Id.  489  ; 
Tooey  v.  Bassett,  10  East  460.  Thus,  in 
Langley  v.  Heald,   7  W.  &  S.  96,  a  devise 


to  "  my  son,  and  in  case  he  shall  die  and 
leave  no  lawful  issue,  then  to  my  daughter, 
if  she  be  then  living,  and  to  her  heirs,"  was 
construed  as  an  estate  in  fee  to  the  son, 
with  an  executory  devise  to  the  daughter, 
because  the  use  of  the  word  "  then"  showed 
that  the  testator  contemplated  a  failure  of 
issue  in  the  lifetime  of  the  daughter,  and 
not  an  indefinite  failure. 

It  has,  however,  long  been  admitted 
that  the  interpretation  of  a  gift  over  upon 
a  failure  of  issue,  as  meaning  an  indefinite 
failure,  tends  to  defeat  the  primary  and 
more  important  purpose  of  the  testator, 
even  when  it  gives  effect  to  his  secondary 
and  more  general  purpose.  It  was  ac- 
cordingly abolished  by  the  Revised  Stat- 
utes of  New  York  and  Virginia,  which 
provide  that  a  remainder  over,  limited 
upon  death  without  heirs  of  the  body  or 
issue,  shall  be  construed  to  mean  heirs  or 
issue  living  at  the  death  of  the  ancestor. 
Similar  provisions  have  since  been  made 
in  Indiana,  Michigan,  and  Missouri,  and 
also  in  England.  R. 


OF    A    WILL    OF    LANDS. 


216 


a  devise  to  a  man  and  his  heirs  male,  which,  in  a  deed,  would  be  held  to 
confer  a  fee  simple,(6)  in  a  will  gives  an  estate  in  tail  male  ;{c)  for,  the 
addition  of  the  word  "male,"  as  a  qualification  of  heirs,  shows  that  a 
class  of  heirs,  less  extensive  than  heirs  general,  was  intended  ;(d )  and 
the  gift  of  an  estate  in  tail  male,  to  which,  in  a  will,  words  of  procreation 
are  unnecessary,  is  the  only  gift  which  at  all  accords  with  such  an  inten- 
tion. So,  even  before  the  enactment,  directing  that  a  devise  without 
words  of  limitation  should  be  construed  to  pass  a  fee  simple,  an  estate  in 
fee  simple  was  often  held  to  be  conferred  without  the  use  of  the  word 
heirs.     Thus,  such  an  estate  was  given  by  a  devise  to  one  in 


fee  *simple,  or  to  him  for  ever,  or  to  him  and  his  assigns  for 


[*217] 


ever,(e)  or  by  a  devise  of  all  the  testator's  estate,  or  of  all  his  property, 
or  all  his  inheritance,  and  by  a  vast  number  of  other  expressions,  by 
which  an  intention  to  give  the  fee  simple  could  be  considered  as  expressed 
or  implied^/)1 

(b)  Ante,  p.  144.  (c)  Co.  Litt.  27  a;  2  Black.  Coin.  115. 

(d)  2  Jarman  on  Wills  233,  1st  ed.  ;   266,  2d  ed.  ;  298,  3d  ed. 

(e)  Co.  Litt.  9  b  ;    2  Black.  Com.  108. 

(/)  2  Jarm.  Wills  181  et  seq.,  1st  ed. ;  225  et  seq.,  2d  ed. ;  253  et  seq.,  3d  ed. 


1  Although  the  intention  of  the  testator 
must  prevail  when  ascertained,  yet  in  as- 
certaining it,  the  words  which  he  uses  are 
to  be  taken  in  their  natural  and  proper 
sense:  Hone  v.  Van  Schaek,  3  Comstock 
538,  which  necessarily  implies  that  tech- 
nical words  are  to  be  construed  in  a  tech- 
nical sense;  Campbell  v.  Jamison,  8  Barr 
498 ;  Corrigan  v.  Kiernan,  1  Bradf.  208. 
But  a  local,  accidental,  or  peculiar  mean- 
ing will  be  given  to  words,  if  it  be  clearly 
apparent  that  they  were  used  or  understood 
in  that  sense  by  the  testator,  although  in- 
consistent with  their  proper  or  technical 
meaning:  Doe  v.  Tofield,  11  East  246; 
Lasher  v.  Lasher,  13  Barbour  106;  Rich- 
ardson v.  Noyes,  2  Mass.  62  ;  although  the 
presumption  in  favor  of  their  appropriate 
meaning  should  always  prevail,  unless 
plainly  rebutted  :  Thelluson  v.  Woodford, 
4  Vesey  329. 

When  a  will  manifests  two  purposes 
which  are  valid  separately,  but,  when  taken 
together,  are  inconsistent  with  each  other 
or  with  legal  principle,  the  law  will  give 
effect  to  the  more  general.     Hence,  where 


.the  words  used  by  the  devisor  import  that 
his  descendants  shall  take  by  descent,  and 
yet  be  restricted  to  an  estate  for  life,  the 
devise  will  be  construed  as  an  estate  tail ; 
thus  carrying  out  the  more  important 
purpose,  and  sacrificing  the  other  which 
is  legally  inconsistent  with  it:  Jackson  v. 
Delancey,  13  Johnson  537  ;  Malcolm  v.  Mal- 
colm, 3  Cushing  472  ;  Dart  v.  Dart,  7  Conn. 
250 ;  and  where  the  words  of  the  will  are 
such  as  to  give  a  fee,  but  are  coupled  with 
a  restraint  on  the  power  of  alienation,  the 
fee  will  pass  to  the  devisee,  and  the  re- 
straint be  held  simply  void,  McCullough  v. 
Gilmore,  1  Jones  370.  Thus,  in  Perrin  v. 
Blake,  4  Burrow  2579,  the  will  would  have 
been  universally  admitted  to  create  an  es- 
tate tail,  had  not  the  testator  declared  that 
the  devisee  should  have  no  power  to  sell  the 
land  for  longer  than  his  life,  which  could 
only  be  rendered  effectual  by  restricting 
him  to  a  life  estate,  and  vesting  the  fee  in 
his  issue,  not  by  descent  but  by  purchase, 
which  would  have  involved  the  necessity 
of  overruling  the  general  intention  of  the 
testator,  and  creating  different  estates  from 


217 


OF    CORPOREAL    HEREDITAMENTS. 


The  doctrine  of  uses  and  trusts  applies  as  well  to  a  will  as  to  a  con- 
veyance made  between  living  parties.  Thus,  a  devise  of  lands  to  A.  and 
his  heirs,  to  the  use  of  B.  and  his  heirs,  upon  certain  trusts  to  be  per- 


those  which  he  had  given,  and  making  a 
new  will  instead  of  construing  that  which 
he  executed. 

The  judicial  interpretation  of  particular 
words  or  phrases  in  one  devise  has  a  great 
if  not  decisive  influence  in  the  construction 
of  every  other  which  is  worded  in  the  same 
manner:  Sisson  v.  Seabury,  1  Sumner  239; 
and  long  experience  has  shown  that  some 
violence  may  be  done  to  the  expressions 
of  the  testator,  in  order  to  carry  out  the 
objects  which  he  had  in  view  in  making  his 
will,  and  the  meaning  of  certain  modes  or 
forms  of  expression,  sought  in  an  inter- 
pretation at  variance  with  their  literal  or 
grammatical  construction  or  meaning. 
Thus  words  in  the  conjunctive  are  some- 
times construed  disjunctively :  Mason  v. 
Mason,  2  Sandford  432  :  and  there  is  an 
important  class  of  cases  in  which  words  in 
the  disjunctive  may  be  taken  conjunctively. . 
Forsyth  v.  Clark,  1  Foster  409. 

Thus,  if  a  man  give  au  estate  of  inherit- 
ance with  a  proviso  that  if  the  devisee  die 
under  twenty-one,  or  without  issue,  it 
shall  go  over,  the  word  "  and"  will  be  read 
instead  of  "  or,"  because,  otherwise,  if  the 
first  taker  should  die  under  age,  leaving 
issue,  such  issue  would  be  disinherited. 
Hence  the  conjunctive  effect  is  given  to  the 
word,  in  direct  opposition  to  its  regular 
import,  and  the  ulterior  limitation  does 
not  take  effect  unless  upon  the  happening 
of  the  double  event,  viz.,  the  death  of  the 
devisee  under  age  and  without  issue: 
Soulle  v.  Guerard,  Cro.  Eliz.  525,  s.  c. 
Moore  422;  Price  v.  Hunt,  Pollexfen  645; 
Walsh  v.  Peterson,  3  Atkins  193;  Fram- 
mingham  v.  Brand,  1  Wilson  140  ;  Barker 
v.  Suretecs,  2  Strange  1175  (all  of  which 
Lecided  before  the  Revolution);  Fair- 
field v.  Morgan,  5  Bos.  &  Puller  3s  ;  Morris 
■. .  Morris,  21  Eng.  L.  ct  Bq.  Rep.  153;  Ray 
v.  Enslin,  2  Mas.--.  454  ;  Hauer's  Lessee  v. 
Sheetz,  2  Binney  5  14;  Holmes  v.  Holmes, 
5  Id.  252  ;  Beltzhoover  v.  Costen,  7   Barr 


13  ;  Jackson  v.  Blanshaw,  6  Johnson  54  : 
Arnold  v.  Buffum,  3  Mason  208  ;  Parker  v. 
Parker,  5  Metcalf  134;  although  courts 
depart  from  the  literal  sense  of  the  expres- 
sion used  by  the  testator  with  reluctance, 
even  for  the  purpose  of  effecting  what  they 
believe  to  have  been  his  real  intention, 
and  are  indisposed  to  go  farther  than  they 
are  sustained  by  precedent,  Mortimer  v. 
Hartley,  6  Exchequer  47-61,  note. 

When  deeds  and  wills  were  first  sub- 
jected to  legal  interpretation,  the  law 
followed  the  usage  and  understanding  of 
the  times,  and  held  that  a  gift  of  land 
meant  a  gift  for  life,  unless  the  donor  de- 
clare his  intention  to  pass  the  fee.  It  was, 
accordingly,  well  established  in  England, 
and  afterwards  here,  that  a  devise  of  land 
gave  only  a  life  estate.  Franklin  v.  Harter, 
7  Blackford  488  ;  Wright  v.  Den.  10 
Wheaton  204  ;  Van  Alstyne  v.  Spraker, 
13  Wend.  578;  Stille  v.  Thompson,  14  S. 
&  R.  74;  and  as  this  rule  of  construction 
became  a  rule  of  property,  which  the 
courts  could  not  abrogate  without  legis- 
lative aid,  it  continued  to  subsist  long 
after  the  institutions  and  customs  on  which 
it  was  founded  had  passed  away,  and  it 
had  ceased  to  be  a  guide  to  the  meaning 
of  wills  or  of  those  by  whom  they  were 
executed. 

The  legislature  has,  however,  recently 
remedied  the  difficulty  in  England,  ami  in 
most  parts  of  this  country,  by  providing 
that  a  devise  of  land  shall  be  construed  as 
passing  the  fee,  unless  there  is  something 
to  restrict  it  to  a  less  estate.  (See  ante.  p. 
20,  note  1.)  The  change  thus  made  is  only 
a  change  in  the  interpretation  to  be  put  on 
the  words  of  the  will,  for  it  was  always 
held  that  the  devisee  would  take  whatever 
estate  the  testator  meant  to  give  him,  and 
the  courts  were  astute  in  seizing  on  every 
circumstance  or  expression  which  tended 
to  show  that  the  gift  was  meant  to  embrace 
the  inheritance,  and  not  to  be  confined  to 


OF    A    WILL    OF    LANDS. 


217 


formed  by  B.,  will  vest  the  legal  estate  in  fee  simple  in  B. ;  and  the  Court 
of  Chancery  will  compel  him  to  execute  the  trust;  unless,  indeed,  he 
disclaim  the  estate,  which  he  is  at  perfect  liberty  to  do.(g)     But,  if  any 

(g)  Nicolson  v.  Wordsworth,  2  Swanst.  365  ;  Urch  v.  Walker,  3  Mylne  &  Craig  702  ; 
Siggers  v.  Evans,  5  El.  &  Bl.  3G7,  380  (E.  C.  L.  R.  vol.  85). 


an  estate  for  life.  Thus  a  devise  of  the 
estate  and  not  merely  of  the  land,  Lam- 
bert's Lessee  v.  Paine,  3  Cranch  97;  God- 
frey v.  Humphrey,  18  Pick.  537  ;  Tracy  v. 
Kilborn,  3  Gushing  557  ;  Kellogg  v.  Blair, 
6  Metcalf  322  ;  Jackson  v.  Merrill,  6  John- 
son 185  ;  Jackson  v.  Babcock,  12  Id.  389; 
Morrison  v.  Smith,  6  Binney  94 ;  Vander- 
werker  v.  Vanderwerker,  7  Barbour  221 ; 
or  even  of  "  that  farm  and  estate,"  Barton 
v.  White,  7  Exchequer  720,  passed  a  fee, 
and  the  same  result  might  follow  from  a 
preamble  expressing  an  intention  to  give 
all  the  testator's  estate,  although  the  sub- 
sequent devise  spoke  only  of  particular 
land,  Schriver  v.  Meyer,  7  Harris  87  ;  if  the 
latter  clause  were  expressly  or  by  implica- 
tion dependent  on  or  connected  with  the 
former  :  French  v.  Mcllhenny,  3  Binney  13  ; 
McClure  v.  Douthit,  3  Barr  446  ;  Miller  v. 
Lynn,  7  Id.  443;  Franklin  v.  Harter,  7 
Blackford  488  ;  Winchester  v.  Tilghman,  1 
Harris  &  McHenry  452  ;  though  not,  as  it 
would  seem,  when  there  was  no  other  con- 
nection between  them  than  that  which 
arose  from  their  being  found  in  the  same 
instrument :  Steele  v.  Thompson,  14  S.  & 
R.  74.  But  when  the  word  "  estate"  or 
other  equivalent  expression  was  not  em- 
ployed, the  largest  descriptive  words,  as, 
for  instance,  "  all  my  lands,  tenements,  and 
hereditaments,"  would  not  give  a  fee  even 
when  coupled  with  the  phrase,  "  freely  to 
be  possessed  and  enjoyed."  Doe  v.  Bain, 
2  C.  &  M.  23,  28,  note  ;  Page  v.  Wright,  4 
Washington's  C.  C.  R.  194;  Wright  v. 
Dunn,  10  Wheaton  205  ;  although  similar 
words  have  sometimes  turned  the  scale 
when  otherwise  balanced.  Campbell  v. 
Carson,  12  S.  &  R.  54  ;  Doe  v.  Roberts,  11 
A.  &  E.  1000.  So,  when  there  was  a 
charge  upon  the  devisee  in  respect  of  the 
lands  devised,  he  took  a  fee,  because  every 
devise   imports  a    benefit,  and    he    might 


otherwise  be  injured,  should  he  die  before 
the  profits  equal  the  charge  :  Jackson  v. 
Budd,  10  Johnson  148  ;  Jackson  v.  Martin, 
18  Id.  31  ;  [Smith  v.  Coyle,  2  Norris  242]. 
But  a  charge  exclusively  on  the  land  did  not 
come  within  this  reason,  and  consequently 
would  not  enlarge  the  estate  of  the  devisee  : 
Vanderwerker  v.  Vanderwerker,  7  Barb. 
221  ;  Alstyne  v.  Spraker,  15  Wend.  578  ;  18 
Id.  200;  Doe  v.  Garlick,  14  M.  k  W.  697,  710 
A  devise  for  life  may  also  be  enlarged 
into  an  estate  of  inheritance,  notwith- 
standing the  use  of  words  implying  a  wish 
that  it  should  be  restricted  to  the  life  of 
the  devisee,  by  words  of  limitation  show- 
ing an  intention  that  the  subsequent 
devisees  shall  take  through  the  first  as  his 
heirs,  and  not  as  purchasers  ;  or  when  the 
purpose  of  the  subsequent  devise  cannot 
be  attained  without  vesting  an  estate  in 
fee  or  in  tail  in  the  first  taker  :  Malcom  v. 
Malcom,  3  dishing  472.  Thus  a  devise 
to  R.,  his  children  and  grandchildren,  and 
if  he  shall  die  without  children  or  grand- 
children, to  the  heirs  of  J.,  was  held  to 
give  an  estate  tail  to  R.  in  order  to  give 
effect  to  the  devise  to  the  children  and 
grandchildren,  and  yet  reconcile  it  with 
the  devise  over  to  the  heirs  of  J.  Here 
the  immediate  purpose  of  the  testator, 
which  was  to  give  an  estate  for  life  to  R. 
with  a  remainder  for  life  to  his  children, 
and  an  ultimate  limitation  on  the  extinc- 
tion of  his  descendants  to  those  of  J., 
could  not  be  carried  out  consistently  with 
the  rule  of  law  which  forbids  perpetuities, 
or  the  imposition  of  any  restraint  on  the 
power  of  alienation,  which  endures  longer 
than  a  life  or  lives  in  being,  and  twenty- 
one  years  afterwards  (as  to  which  see  Ch. 
III.  sect.  2)  ;  and  the  only  mode  in  which 
the  devise  could  be  rendered  valid  was  by 
sacrificing  particular  details  to  the  general 
purpose  of  the  testator.  R. 


217  OF    COKPOREAL    HEREDITAMENTS. 

trust  or  duty  shall  be  imposed  upon  A.,  it  will  then  become  a  question, 
on  the  construction  of  the  will,  whether  or  not  A.  takes  any  legal  estate ; 
and,  if  any,  to  what  extent.  If  no  trust  or  duty  is  imposed  on  him,  he 
is  a  mere  conduit-pipe  for  conveying  the  legal  estate  to  B.,  filling  the 
same  passive  office  as  a  person  to  whom  a  feoffment  or  conveyance  has 
been  made  to  the  use  of  another.(/j)  From  a  want  of  acquaintance  on 
the  part  of  testators  with  the  Statute  of  Uses,(i)  great  difficulties  have 
frequently  arisen  in  determining  the  nature  and  extent  of  the  estates  of 
trustees  under  wills.  In  doubtful  cases,  the  leaning  of  the  courts  was  to 
give  to  the  trustees  no  greater  estate  than  was  absolutely  necessary  for 
T*9181  ^e  PurPoses  °f  tneir  trust.  But  this  doctrine  having  frequently 
been  found  inconvenient,  provision  *has  been  made  in  the  Wills 
Act(&)  that,  under  certain  circumstances,  not  always  to  be  easily  ex- 
plained, the  fee  simple  shall  pass  to  the  trustees,  instead  of  an  estate  de- 
terminable when  the  purposes  of  the  trust  shall  be  satisfied. 

The  above  examples  may  serve  as  specimens  of  the  great  danger  a 
person  incurs  who  ventures  to  commit  the  destination  of  his  property  to 
a  document  framed  in  ignorance  of  the  rules  by  which  the  effect  of  such 
document  must  be  determined.  The  Wills  Act,  by  the  alterations  above 
mentioned,  has  effected  some  improvement ;  but  no  act  of  parliament  can 
give  skill  to  the  unpracticed,  or  cause  everybody  to  attach  the  same 
meaning  to  doubtful  words.  The  only  way,  therefore,  to  avoid  doubts 
on  the  construction  of  wills,  is  to  word  them  in  proper  technical  lan- 
guage,— a  task  to  which  those  only  who  have  studied  such  language  can 
be  expected  to  be  competent.1 

If  the  testator  should  devise  land  to  the  person  who  is  his  heir  at  law, 
it  is  provided  by  the  "Act  for  the  Amendment  of  the  Law  of  Inherit- 
ance"^) that  such  heir  shall  be  considered  to  have  acquired  the  land  as 
a  devisee,  and  not  by  descent.  Such  heir,  thus  taking  by  purchase,(?n) 
will,  therefore,  become  the  stock  of  descent;  and  in  case  of  his  decease 
intestate,  the  lands  will  descend  to  his  heir,  and  not  to  the  heir  of  the 
testator,  as  they  would  have  done  had  the  lands  descended  on  the  heir. 
Before  this  act,  an  heir  to  whom  lands  were  left  by  his  ancestor's  will 

(A)  2  Jarm.  Wills  198,  1st  ed.  ;  239,  2d  ed.  ;   270,  3d  ed. ;  see  ante,  p.  158. 

(i)  27  Hen.  VIII.  e.  10;  ante,  p.  157. 

(/  ,  Stat.  7  Will.  IV.  &  1  Vict.  c.  26,  ss.  30,  31. 

(/)  Stat.  3  &  4  Will.  IV.  c.  100,  s.  3  ;  see  Strickland  v.  Strickland,  10  Sim.  374. 

(id)  Ante,  p.  100. 

1  See, passim,  Sugden's  "Letters  to  a  Man  of  Property,"  138.  R. 


OF    A    WILL    OF    LANDS.  218 

was  considered  to  take  by  his  prior  title  of  descent  as  heir,  and  not  under 

the  will, — unless  the  testator  altered  the  estate  and  limited  *it    ,.  „  „_ 

T  2191 
in  a  manner  different  from  that  in  which  it  would  have  descended    L  -    •  J 

to  the  heir.(w) 

It  is  usually  the  practice,  as  is  well  known,  for  every  testator  to  ap- 
point an  executor  or  executors  of  his  will ;  and  the  executors  so  ap- 
pointed have  important  powers  of  disposition  over  the  personal  estate 
of  the  testator. (o)  But  the  devise  of  the  real  estate  of  the  testator  is 
quite  independent  of  the  executors'  assent  or  interference,  unless  the 
testator  should  either  expressly  or  by  implication  have  given  his  exec- 
utors any  estate  in  or  power  over  the  same.  In  modern  times,  however, 
the  doctrine  has  been  broached  that  if  a  testator  charges  his  real  estate 
with  the  payment  of  his  debts,  such  a  charge  gives  by  implication  a 
power  to  his  executors  to  sell  his  real  estate  for  the  payment  of  his 
debts.  The  author  has  elsewhere  attempted  to  show  that  this  doctrine, 
though  recognized  in  several  modern  cases,  is  inconsistent  with  legal 
principles  ;(p)  and  in  this  he  has  since  been  supported  by  the  great 
authority  of  Lord  St.  Leonards. (q)  In  consequence,  however,  of  the 
difficulties  to  which  these  cases  gave  rise,  an  act  has  passed  by  which, 
where  there  is  a  charge  of  debts  or  legacies,  the  trustees  in  some  cases 
and  in  other  cases  the  executors  of  a  testator  are  empowered  to  sell  his 
real  estate  for  the  purpose  of  paying  such  debts  or  legacies.  The  act  to 
further  amend  the  law  of  property  and  to  relieve  trustees,(r)  which  was 
passed  on  the  13th  August,  1859,  enacts(s)  that  where,  by  any  will 
that  shall  come  into  operation  after  the  passing  of  the  act,  the  testator 
*shall  have  charged  his  real  estate  or  any  specific  portion 
thereof  with  the  payment  of  his  debts  or  of  any  legacy,  and  L  "  J  J 
shall  have  devised  the  estate  so  charged  to  any  trustee  or  trustees  for 
the  whole  of  his  estate  or  interest  therein,  and  shall  not  have  made  any 
express  provision  for  the  raising  of  such  debts  or  legacy  out  of  the 
estate,  such  trustee  or  trustees  may,  notwithstanding  any  trusts  actually 
declared  by  the  testator,  raise  such  debts  or  legacy  by  sale  or  mortgage 
of  the  lands  devised  to  them.  And  the  powers  thus  conferred  extend 
to  all  persons  in  whom  the  estate  devised  shall  for  the  time  being  be 

(n)  Watk.  Descents  174,  176  (229,  231,  4th  ed.). 

(o)  Principles  of  the  Law  of  Personal  Property,  pp.  270  et  seq.,  4th  ed. ;  312  et  seq., 
5th  ed. ;  318  et  seq.,  6th  ed. ;  328  et  seq.,  7th  ed. ;  341  et  seq.,  8th  ed. ;  372  et  seq., 
9th  ed. 

(p)  See  the  author's  Essay  on  Real  Assets,  c.  6. 

(q)  Sug.  Pow.  120-122,  8th  ed.  (r)  Stat.  22  &  23  Vict.  c.  35. 

(s)  Sect.  14. 


220  OF    CORPOREAL    HEREDITAMENTS. 

vested  by  survivorship,  descent,  or  devise,  and  to  any  persons  appointed 

to  succeed  to  the  trusteeship,  either  under  any  power  in  the  will,  or  by 

the  Court  of  Chancery,  now  represented  by  the  Chancery  Division  of  the 

High  Court. (t)    But  if  any  testator,  who  shall  have  created  such  a  charge, 

shall  not  have  devised  the  hereditaments  charged  in  such  terms  as  that 

his  whole  estate  and  interest  therein  shall  become  vested  in  any  trustee 

or  trustees,  the  executor  or  executors  for  the  time  being  named  in  his 

will  (if  any)  shall  have  the  same  power  of  raising  the  same  moneys  as  is 

before  vested  in  the  trustees  ;  and  such  power  shall  from  time  to  time 

devolve  to  the  person  or  persons  (if  any)  in  whom  the  executorship  shall 

for  the  time  being   be  vested. (a)     And   purchasers  or  mortgagees  are 

not  to  be  bound  to  inquire  whether  the  powers  thus  conferred  shall  have 

been  duly  exercised  by  the  persons  acting  in  exercise  thereof.(^)     But 

these  provisions  are  not  to  prejudice  or  affect  any  sale  or  mortgage  made 

or  to  be  made  in  pursuance  of  any  will  coming  into  operation  before  the 

passing  of  the  act ;  nor  are  they  to  extend  to  a  devise  to  any  person  in 

fee  or  in  tail,  or  for  the  testator's  whole  estate  and  interest,  charged  with 

r*99-|-i    debts    *or  legacies  ;  nor   are  they  to   affect  the  power  of  any 

such  devisee  to  sell  or  mortgage  as  he  or  they  may  by  law  now 

do.     In  these  cases   the  law  is  that  the  devisee  may,  in  the  exercise  of 

his  inherent   right  of  alienation,  either  sell  or  mortgage   the  lands  de- 
cs o    o 

vised  to  him  ;  but  if  legacies  only  are  charged  thereon,  the  purchaser  or 
mortgagee  is  bound  to  see  his  money  duly  applied  in  their  payment. (y) 
If,  however,  the  testator's  debts  are  charged  on  the  lands,  then,  whether 
there  be  legacies  also  charged  or  not,  the  practical  impossibility  of 
obliging  the  purchaser  or  mortgagee  to  look  to  the  payment  of  so  uncer- 
tain a  charge  exonerates  him  from  all  liability  to  do  more  than  simply 
pay  his  money  to  the  devisee  on  his  sole  receipt. (z) 

It  is  provided  by  the  Registry  Acts  for  Middlesex(a)  and  Yorkshire, 
and  the  town  and  county  of  Kingston-upon-Hull,(6)  that  a  memorial  of 
all  wills  of  lands  in  those  counties  shall  be  registered  within  six  months 
after  the  death  of  every  testator  dying  within  the  Kingdom  of  Great 
Britain,  or  within  three  years  after  the  death  of  every  testator  dying 
upon  the  seas  or  in  parts  beyond  the  seas  ;  otherwise  every  such  devise 

(l)  Stat.  22  &  23  Vict.  c.  35,  s.  15.  (u)  Sect.  16. 

(a:)  Sect.  17. 

(//)  Horn  v.  Horn,  2  Sim.  &  Stu.  448  ;  Essay  on  Real  Assets,  p.  63. 
i      Essaj  on  Real  Assets,  pp.  62,  63.     Corser  v.  Cartwright,  L.  R.,  7  H.  of  L.  E.  &  I. 
731.  (a)  Stat.  7  Anne,  c.  20,  s.  8. 

(4)  Stats.  2  &  3  Anne,  c.  4,  s.  20  ;  6  Anne,  c.  35  ;  8  Geo.  II.  c.  6,  s.  15. 


OF   A   WILL    OF    LANDS.  221 

by  will  shall  be  adjudged  fraudulent  and  void  against  any  subsequent 
purchaser  or  mortgagee  for  valuable  consideration. (c)  But  the  Vendor 
and  Purchaser  Act,  1874,(d)  now  provides(e)  that  where  the  will  of  the 
testator  devising  lands  in  Middlesex  or  Yorkshire  has  not  been  registered 
within  the  period  allowed  by  law  in  that  *bebalf,  an  assurance  r*222~| 
of  such  land  to  a  purchaser  or  mortgagee  by  the  devisee,  or  by 
some  one  deriving  title  under  him,  shall,  if  registered  before,  take  prece- 
dence of  and  prevail  over  any  assurance  from  the  testator's  heir  at  law. 

(c)  Chadwick  v.  Turner,  34  Beav.  634 ;  affirmed,  L.  R.  1  Ch.  310  ;  Dart's  Vendors  and 
Purchasers,  624,  625,  4th  ed.  ;  682,  5th  ed. 

(d)  Stat.  37  &  38  Vict.  c.  78.  (e)  Sect.  8. 


[*223]  CHAPTER    XI. 

OF   THE   MUTUAL    RIGHTS    OF    HUSBAND   AND   WIFE. 

The  next  subject  of  our  attention  will  be  the  mutual  rights  in  respect 
of  lands  arising  from  the  relation  of  husband  and  wife.  In  pursuing 
this  subject,  let  us  consider,  first,  the  rights  of  the  husband  in  respect  of 
the  lands  of  his  wife ;  and,  secondly,  the  rights  of  the  wife  in  respect  of 
the  lands  of  her  husband. 

1.  First  then,  as  to  the  rights  of  the  husband  in  respect  of  the  lands 
of  his  wife.1  By  the  act  of  marriage,  the  husband  and  wife  become  in 
law  one  person,  and  so  continue  during  the  coverture  or  marriage.(a) 
The  wife  is  as  it  were  merged  in  her  husband.  Accordingly,  the  hus- 
band is  entitled  to  the  whole  of  the  rents  and  profits  which  may  arise 
from  his  wife's  lands,  and  acquires  a  freehold  estate  therein,  during  the 
continuance  of  the  coverture  ;(b)  and,  in  like  manner,  all  the  goods  and 
personal  chattels  of  the  wife,  the  property  in  which  passes  by  mere 
delivery  of  possession,  belong  solely  to  her  husband. (<?)  For,  by  the 
ancient  common  law,  it  was  impossible  that  the  wife  should  have  any 
power  of  disposition  over  property  for  her  separate  benefit,  independently 
of  her  husband.  In  modern  times,  however,  a  more  liberal  doctrine  has 
been  established  by  the  Court  of  Chancery,  now  represented  by  the 
r*9941  Chancery  Division  of  the  High  Court  of  Justice  ;  *for  this  court 
L  "  "  J  now  permits  property  of  every  kind  to  be  vested  in  trustees,  in 
trust  to  apply  the  income  for  the  sole  and  separate  use  of  a  woman 
during  any  coverture,  present  or  future.2     Trusts  of  this  nature  are  con- 

(«)  Litt.  s.  168  ;   1  Black.  Com.  442  ;  Gilb.  Ten.  108  ;   1  Roper's  Husband  and  Wife  1. 

(b)  1   Rop.  Husb.    and   Wife  3  ;    Robertson  v.  Norris,    11    Q.    B.    916    (E.  C.  L.  R. 
vol.  63). 

(c)  1  Rop.  Husb.  and  Wife  169. 

1  Recent  legislation  in  most  of  the  United  saving,  however,  to  the  husband  his  estate 

States    has  materially  changed   the  com-  by  curtesy,  and  his  right  to  a  distributive 

mon-law  rules  as  to  the  control  of  the  hus-  share  of  her  personal  estate  on  her  death. 

baud  over  the  wife's  property.     In  all  of  M. 

the  States  referred  to,  the  wife's  property,  2  Unless,  however,  the  property  be  lim- 

whether    owned    before  or  acquired  after  ited  in  terms  to  her  "  sole  and  separate" 

marriage,    is    now    completely    protected  use,  or  other  words  be  used  which  denote 

from  the  husband's  creditors,  and  in  some  the  intention  to  exclude  the  marital  right, 

of  them  her  ownership  and  control  over  it  equity  will  follow  the  law,  which  gives  to 

are    assimilated  to  those  of  a  feme  sole,  the  husband  the  power  of  dealing  with  the 


OF   THE    MUTUAL    RIGHTS    OF    HUSBAND    AND    WIFE.  224 

tinually  enforced  by  the  court ;  that  is,  the  court  will  oblige  the  trustees 
to  hold  for  the  sole  benefit  of  the  wife,  and  will  prevent  the  husband 
from  interfering  with  her  in  the  disposal  of  such  income ;  she  will  conse- 
quently enjoy  the  same  absolute  power  of  disposition  over  it  as  if  she 
were  sole  or  unmarried.     And,  if  the  income  of  property  should  be  given 
directly  to  a  woman,  for  her  separate  use,  without  the  intervention   of 
any  trustee,  the  court  will  compel  her  husband  himself  to  hold  his  mari- 
tal rights  in  such  income  simply  as  a  trustee  for  his  wife,  independently 
of  himself.(d)1     The  limitation  of  property  in  trust  for  the  separate  use 
of  an  intended  wife  is  one  of  the  principal  objects  of  a  modern  marriage 
settlement.     By  means  of  such   a  trust,  a  provision  may  be  secured, 
which  shall  be  independent  of  the  debts  and  liabilities  of  the  husband, 
and  thus  free  from  the  risk  of  loss,  either  by  reason  of  his  commercial 
embarrassments  or  of  his  extravagant  expenditure.     In  order  more  com- 
pletely to  protect  the  wife,  the  court  allows  property  thus  settled  for 
the  separate  use  of  a  woman  to  be  so  tied  down  for  her  own  personal 
benefit  that  she  shall  have  no  power,  during  her  coverture,  to  anticipate 
or  assign  her  income ;  for  it  is  evident  that,  to  place  the  wife's  property 
beyond  the  power  of  her  husband,  is  not  a  complete  protection  for  her, — 
it  must  also  be  placed  beyond  the  reach  of  his  persuasion.     In  this  par- 
ticular instance,  therefore,  an  exception  has  been  allowed  to  the  general 
rule,  which  forbids  any  restraint  to  be  imposed  on  alienation.     When 
the  trust,  under  which  property  is  held  for  the  separate  use  of  a  woman 
during  any  *coverture,  declares  that  she  shall  not  dispose  of  the    r*2251 
income  thereof  in  any  mode  of  anticipation,  every  attempted  dis- 
position by  her  during  such  coverture  will  be  deemed  absolutely  void.(e)2 

(d)  2  Rop.  Husb.  and  Wife  152,  182  ;  Major  v.  Lansley,  2  Russ.  &  Mylne  355. 

(e)  Brandon  v.  Robinson,  18  Ves.  434 ;  2  Rop.  Husb.  and  Wife  230  ;  Tullett  v.  Arm- 
strong, 1  Beav.  1  ;  4  Mylne  &  Cr.  390 ;  Scarborough  v.  Borman,  1  Beav.  34  ;  4  M.  & 
Cr.  377  ;  Baggett  v.  Meux,  1  Collyer  138  ;  ante,  p.  95. 

wife's  income.  Thus  in  Tidd  v.  Lister,  17  1  The  rule  of  equity  is,  as  to  this,  the 
Eng.  Law  &  Eq.  R.  560;  s.  c.  23  Id.  578,  same  on  both  sides  of  the  Atlantic.  Coch- 
a  purchaser  for  value  from  the  husband  of  ran  v.  O'Hern,  4  W.  &  S.  95  ;  Heath  v. 
the  wife's  equitable  life  interest  was,  on  Knapp,  4  Barr  228;  Fears  v.  Brooks,  12 
that  ground,  protected  against  the  claim  Georgia  195;  Trenton  Banking  Co.  v. 
of  the  wife  for  maintenance.  A  well-  Woodruff,  1  Greene's  Ch.  R.  118  ;  Shirley 
settled  distinction  exists,  however,  be-  v.  Shirley,  9  Paige  364 ;  Steele  v.  Steele, 
tween  the  husband's  rights  thus  to  dispose  1  Iredell's  Eq.  R.  452  ;  Long  v.  White,  5 
of  his  wife's  life  interest  and  that  over  her  J.  J.  Marshall  226  ;  Knight  v.  Bell,  22  Ala- 
absolute  interest,  in  which  case  both  the  bama  198  ;  Griffith  v.  Griffith,  5  B.  Mou- 
husband  and  his  assignees  take  it  subject  roe  113.  R- 
to  the  equity  of  making  a  provision  for  2  But,  although  this  is  so  where  there  is 
her.  Tidd  v.  Lister;  Browning  v.  Headley,  such  an  express  restraint  upon  anticipation 
2  Robinson  (Va.)  340.                            R.  or  alienation,  yet  in  the  absence  of  such  a 


225 


OF    CORPOREAL    HEREDITAMENTS. 


Not  only  the  income,  but  also  the  corpus  of  any  property,  whether  real 
or  personal,  may  be  limited  to  the  separate  use  of  a  married  woman. 
Recent  decisions  have  established  that  a  simple  gift  of  real  estate,  either  with 


clause  in  the  instrument  which  creates  the 
trust,  its  subjects  are,  in  England,  much  at 
the  mercy  of  the  husband  through  the  me- 
dium of  his  persuasion  over  the  wife,  for 
the  rule  there  prevails  that  a  wife  is,  as 
respects  her  separate  estate,  to  be  consid- 
ered as  a  feme  sole.  If  the  subject  of  the 
trust  be  personal  estate,  she  takes  it  with 
all  its  incidents,  and,  among  others,  with 
an  absolute  power  of  alienation  :  Fettiplace 
v.  Gorges,  1  Ves.  46,  3  Brown's  Ch.  R.  8; 
either  by  acts  inter  vivos,  or  by  will : 
Grigby  v.  Cox,  2  Ves.  Sen.  517;  Rich  v. 
Cockrell,  9  Ves.  69  ;  Wagstaff  v.  Smith,  Id. 
520  :  and  whether  it  be  in  possession  or 
reversion :  Sturgis  v.  Corp,  13  Ves.  190. 
She  can  also  absolutely  dispose  of  the 
income  of  real  estate,  and  her  contract  to 
sell  or  mortgage  it  will  be  specifically  en- 
forced against  her  :  Power  v.  Bailey,  Ball 
&  B.  R.  49  ;  Stead  v.  Nelson,  2  Beav.  245  ; 
Wainwright  v.  Hardisty,  Id.  363  ;  Major  v. 
Lansley.  2  Rus.  &  My.  357,  even  without 
the  assent  of  her  trustees  :  Essex  v.  Atkins, 
14  Ves.  542.  The  wife's  separate  estate 
has  also,  since  the  case  of  Hulme  v.  Tenant, 
1  Brown's  Ch.  R.  16,  been  rendered  liable 
to  her  general  engagements:  Murray  v. 
Barley,  3  Myl.  &  K.  223  ;  Owens  v.  Dicker- 
son,  Craig  &  Phillips  53  ;  see  notes  to 
Hulme  v.  Tenant,  in  1  Leading  Cases  iu 
Equity  401  ;  Hill  on  Trustees  421 ;  Spence's 
Eq.  Jur.  513;  although  no  case  can  be 
found  in  which  a  bill  by  husband  and 
wife  against  the  trustees  for  a  conveyance 
of  the  fee  to  themselves  has  been  sus- 
tained, probably  on  the  ground  that  al- 
though equity  will  give  effect  to  the  con- 
tracts  of  the  wife,  it  will  not  interfere  in 
favor  of  volunteers.  ''In  the  midst  of 
great  perplexity  and  contusion,"  says  a 
text  writer,  "this  much  may  be  collected 
from  the  cases,  that  wherever  money  or  the 
interest  of  money,  or  the  rents  and  profits 
of  lands  for  her  life,  have  been  limited  to 
the  separate  use  of  a  married  woman,  with 
a  power  to  appoint,  but   without   a  pre- 


scribed form  of  appointment,  there  she  has 
the  complete  property  in  the  thing  given, 
to  the  full  extent  of  her  estate  in  it,  and 
may  alienate  it  and  all  that  arises  from  it 
in  any  manner  in  which  she  thinks  pro- 
per."    Clancy  on  Husband  and  Wife  289. 

On  this  side  of  the  Atlantic,  however, 
while  the  general  principle  is,  with  some 
modifications  in  its  application,  recognized 
and  enforced  in  some  States,  a  different 
rule  prevails  in  others.  The  Chancellor  of 
South  Carolina  had,  in  1811,  decided  the 
case  of  Ewing  v.  Smith,  3  De  Saussure 
417,  in  accordance  with  the  English  au- 
thorities, which  he  elaborately  reviewed  : 
but  the  Court  of  Appeals  reversed  the  de- 
cision and  established  the  contrary  prin- 
ciple, that  a  married  woman  has  no  power 
over  her  separate  estate  further  than  has 
been  expressly  given  to  her  by  the  instru- 
ment creating  it,  and  that  any  such  power 
so  given  must  be  strictly  pursued.  This 
decision  has  been  adhered  to  in  that  State. 
Magwood  v.  Johnson,  1  Hill's  Ch.  R.  228  ; 
Reed  v.  Lamar,  1  Strob.  Eq.  R.  27  ;  Cal- 
houn v.  Calhoun,  2  Id.  231.-  The  same 
principle  was  ably  euforced  by  Chancellor 
Kent  in  Methodist  Episcopal  Church  v. 
Jacques,  3  Johns.  Ch.  78  ;  but  this  decision 
was  reversed  by  the  Court  of  Errors,  17 
Johns.  548,  and  the  English  rule  then  as 
well  as  subsequently  approved :  Dyett  v. 
North  American  Coal  Co.,  20  Wendell  570, 
7  Paige  Ch.  1 ;  Powell  v.  Murray,  2  Edward 
Ch.  636  ;  [Gardner  v.  Gardner,  22  Wendell 
526  ;  Yale  v.  Dederer,  18  N.  Y.  269,  s.  c.  22 
N.  Y.  450.  M.]  ;  though  under  the  Revised 
Statutes  as  to  trusts,  the  construction  they 
have  received  has  restricted  the  wife's 
power  over  her  separate  estate  within  the 
narrowest  limits:  L'Amoureux  v.  Van 
Rensselaer,  1  Barb.  Ch.  34 ;  Rogers  v.  Lud- 
low, 3  Sanford's  Ch.  104;  Noyen  v.  Blake- 
mar,  Id.  538  ;  Leggett  v.  Perkins,  2  Com- 
stock  297.  In  Pennsylvania,  the  English 
rule  was  disapproved  of  in  one  of  Ch.  J. 
Gibson's   ablest  opinions  in   the   case  of 


OF   THE    MUTUAL    RIGHTS    OF    HUSBAND    AND    WIFE. 


225 


or  without  the  intervention  of  trustees,!/)  for  the  separate  use  of  a  married 
woman,  is  sufficient  to  give  her  in  equity  a  power  to  dispose  of  it  by  deed 
or  will  without  the  consent  or  concurrence  of  her  husband.^)  The  same 
rule  has  long  been  established  with  respect  to  personal  estate  (A)  But 
where  the  legal  estate  in  lands  is  vested  in  the  wife,  it  must  still  be  con- 

g  ^:^:™£^:*^  «E;  N-  S-  1«  ;  4  D.  **  "~  .  Smith 

'°%  See  Principles  of  the  Law  of  Personal  Property,  p.  354,  5th  ed.  ;  361,  6th  ed. ; 
384,  7th  ed. ;  400,  8th  ed. ;  424,  9th  ed. 


Lancaster  v.  Dolan,  1  Rawle  231  ;   and  it 
was  declared  to  be  "the  true  principle  of 
these  settlements,  that  instead  of  holding 
the  wife  to  be  a  feme  sole  to  all  intents  as 
regards  her  separate  estate,  she  ought  to 
be  deemed    so  only  to  the  extent  of  the 
power  clearly  given  in  the  conveyance,  and 
that  instead  of  maintaining  that  she  has 
an  absolute  right  of  disposition,  unless  she 
is    expressly  restrained,   the    converse    of 
the  proposition  ought  to  be  established— 
that   she   has   no  power  but  what  is  ex- 
pressly given."     The  rule  thus  established 
has  been  followed  in  that  State  with  great 
strictness:    Thomas  v.  Folwell,  2  Whart. 
11  ;  Dorrance  v.  Scott,  3  Id.  309  ;  Wallace 
v.  Coston,  9  Watts   137  ;  Rogers  v.  Smith, 
4    Barr    93 ;     [Patterson    v.    Robinson,    1 
Casey    81;    Ramborger    v.    Ingraham,    2 
Wright  146 ;  and  it  is  not  altered  by  the 
statute  of  1848,  enacting  that  a  married 
woman's  estate  shall  continue  hers  as  fully 
after  marriage  as  before,  Wright  v.  Brown, 
8  Wright  224;  Shonk  v.  Brown,   11  P.  F. 
Smith  320.     M.] 

The  rule  thus  adopted  in  South  Carolina 
and  Pennsylvania  has  been  received  with 
approbation  in  some  States,  such  as  Ten- 
nessee :  Morgan  v.  Elam,  9  Yerger  375  ; 
Marshall  v.  Stephens,  8  Humphreys  159  ; 
Sutten  v.  Baldwin,  Id.  209  ;  Ware  v.  Sharp, 
1  Swan  489  ;  Mississippi :  Doty  v.  Mitchell, 
9  Sm.  &  M.  447  ;  Montgomery  v.  Agricul- 
tural Bank,  10  Id.  567  ;  Virginia  :  William- 
son v.  Beekham,  8  Leigh  20;  Rhode 
Island :  Metcalf  v.  Cook,  2  Rh.  Island  R. 
355;  but  others  profess  to  follow  the  Eng- 
lish'rule,  such  as  Connecticut:  Imlay  v. 
14 


Huntingdon,  20  Connect.  175  ;  New  Jersey : 
Leaycraft  v  Hedden,  3  Green's  Ch.  R.  551  ; 
Kentucky  :  Coleman  v.  Wooley,  10  B.  Mon. 
320  ;  Alabama:  McCroan  v.  Pope,  17  Alab. 
612  ;   Bradford  v.  Greenway,  Id.  805  ;  Col- 
lins v.  Larenburg,  19  Id.  685;    Georgia: 
Wyly  v.  Collins,  9  Georg.  223  ;   Fears  v. 
Brooks,  12  Georg.  200  ;    [Ohio  :  Hardy  v. 
Van  Harlingen,   7  Ohio,  N.  S.  208  ;    Mis- 
souri:  Whitesides  v.  Cannon.  23  Mo.  457  ; 
Segoud    v.   Garland,    Id.    547;    Vermont: 
Frary  v.  Booth,  4  Am.  Law  Reg.  N.  S.  141, 
and  note;   and  Maryland:  Cooke  v.  Hus- 
bands, 11  Md.  492  ;  Chew's  Adm.  v.  Beall, 
13  Md.  348,  which  appear  to  overrule  the 
earlier  decisions    in    Tarr  v.  Williams,  4 
Md.  Ch.  68,  and  Miller  v.  Williamson,  5  Md. 
219.     M.]     In  North  Carolina  the  general 
principle  seems  undetermined,  but  it  has 
been  there  held  that  a  married  woman  may 
charge  the  profits  of  her  separate  estate 
by  any  instrument  or  means  which  refers 
to  the  estate  and  distinctly  denotes  an  in- 
tention to  bind  it.     Frazier  v.  Brownlow, 
3  Iredell's  Eq  Rep.  237  ;  Newlin  v.  Free- 
man,   4    Id.    312;    Mr.  Wallace's    note    to 
Hulme  v.  Tenant,  supra;    Mr.  Wharton's 
note  to  Hill  on  Trustees  421. 

In  England  it  is  settled  that  a  trust  for 
separate  uses,  though  suspended  by  the 
cessation  of  coverture,  will  reattach  on  a 
subsequent  marriage  :  Clark  v.  Jacques,  1 
Beav.  36  ;  Dixon  v.  Dixon,  Id.  40  ;  Ashton 
v.  McDougall,  5  Id.  56  ;  but  it  has  been  de- 
cided in  Pennsylvania,  in  Smith  v.  Starr, 
3  Whart.  62,  and  Hammersley  v.  Smith,  4 
Id.  126,  that  the  trust  is  not  revived  by 
the  subsequent  marriage.  R- 


225  OF    CORPOREAL   HEREDITAMENTS. 

veyed  by  a  deed  to  be  separately  acknowledged  by  her,  in  the  manner  to 
be  presently  explained. 

The  Married  "Women's  Property  Act,  1870,(7)  now  provides  that  where 
any  freehold,  copyhold,  or  customaryhold  property  shall  descend  upon 
any  woman  married  after  the  passing  of  that  act  as  heiress  or  co-heiress 
of  an  intestate,  the  rents  and  profits  of  such  property  shall,  subject  and 
without  prejudice  to  the  trusts  of  any  settlement  affecting  the  same,  be- 

7  long  to  such  woman  for  her  *separate  use,  and  her  receipts  alone 

L  shall  be  a  good  discharge  for  the  same.(&) 

Whilst  provisions  for  the  separate  benefit  of  a  married  woman  have 
thus  arisen  in  equity,  the  rule  of  law  by  which  husband  and  wife  are  con- 
sidered as  one  person  still  continues  in  operation,  and  is  occasionally 
productive  of  rather  curious  consequences.  Thus,  if  lands  be  given  to 
A.  and  B.  (husband  and  wife),  and  C,  a  third  person,  and  their  heirs — 
here,  had  A.  and  B.  been  distinct  persons,  each  of  the  three  joint  ten- 
ants would,  as  we  have  seen,(?)  have  been  entitled,  as  between  themselves, 
to  one  third  part  of  the  rents  and  profits,  and  would  have  had  a  power  of 
disposition  also  over  one  third  part  of  the  whole  inheritance.  But,  since 
A.  and  B.,  being  husband  and  wife,  are  only  one  person,  they  will  take, 
under  such  a  gift,  a  moiety  only  of  the  rents  and  profits,  with  a  power 
to  dispose  only  of  one  half  of  the  inheritance  ;(m)  and  C,  the  third  per- 
son, will  take  the  other  half,  as  joint  tenant  with  them.  Again,  if  lands 
be  given  to  A.  and  B.  (husband  and  wife)  and  their  heirs — here,  had 
they  been  separate  persons,  they  would  have  become,  under  the  gift, 
joint  tenants  in  fee  simple,  and  each  would  have  been  enabled,  without 
the  consent  of  the  other,  to  dispose  of  an  undivided  moiety  of  the  inher- 
itance. But,  as  A.  and  B.  are  one,  they  now  take,  as  it  is  said,  by  entire- 
ties ;l  and,  whilst  the  husband  may  do  what  he  pleases  with  the  rents 

(t)  Stat.  33  &  34  Vict.  c.  93,  passed  9th  August,  1870. 

{k)  Stat.  33  &  34  Vict.  c.  93.  s.  8.  (I)  Ante,  pp.  132,  136. 

Litt.  s.  291;  Gordon  v.  Whieldon,  11  Beav.  170;    Re  Wylde,  2  De  Gex,  M.  & 
G.  724. 

1  Harding  v.  Springer,    2  Shepley   407.  ried  woman  remains   hers  after  marriage 

And  the  right  of  survivorship  remains  as  as    completely  as    before.     By  a    convey- 

inciilent    to    this    estate,    notwithstanding  ance    to    husband    and   wife    no    separate 

the    statute    of    Pennsylvania    abolishing  property  accrues  to  the  wife  in  any  differ- 

such   right  is  cases  of  joint  tenancy,  and  eut  manner  than  it  did  before  that  statute, 

notwithstanding  the  act  of  1848,  by  which  Stuckey  v.  Keefe,  2  Casey  297;  Bates  v. 

property  owned  by  or  accruing  to  a  mar-  Seeley,  10  Wright  248;  Auman  v.  Auman,  9 


OF   THE    MUTUAL    RIGHTS    OF   HUSBAND   AND    WIFE. 


226 


and  profits   during  the  coverture,  he  cannot  dispose  of  any  part  of  the 
inheritance  without  his  wife's  concurrence.1     Unless  they  both  agree  in 
making  a  disposition,  each  one  of  them  *must  run  the  risk  of 
gaining  the  whole  by  survivorship,  or  losing  it  by  dying  nrst.(w)     l 
Another  consequence  of  the  unity  of  husband  and  wife  is  the  inability  of 
either  of  them  to  convey  to  the  other.     As  a  man  cannot  convey  to 
himself,  so  he  cannot  convey  to  his  wife,  who  is  part  of  himself.(o)     But 
a  man   may  leave   lands  to  his  wife  by  his  will ;  for  the  married  state 
does  not  deprive  the  husband  of  that  disposing  power  which  he  would 
possess   if  single,    and    a   devise   by  will    does   not   take   effect    until 
after  his  decease.^)     And  by  means  of  the  Statute  of  Uses,  the  effect 
of  a  conveyance  by  a  man  to  his  wife  can  be  produced  ;{q)  for  a  man  may 
convey  to  another  person  to  the  use  of  his  wife  in  the  same  manner  as 
under  the  statute,  we  have  seen,(r)  a  man  may  convey  to  the  use  ot 
himself.3 

If  the  wife  should  survive  her  husband,  her  estates  in  fee  simple  will 
remain  to  herself  and  her  heirs,  after  his  death,  unaffected  by  any  debts 


(n)  Doe  d.  Freestone  v.  Parratt,  5  T.  Rep 

(o)  Litt.  s.  168. 

(q)   1  Rop.  Husb.  and  Wife  53. 


652. 


(p)  Litt.  ubi  supra, 
(r)  Ante,  p.  189. 


Harris  343  ;  Martin  v.  Jackson,  3  Casey  504 ; 
[Diver  v.  Diver,  6  P.  F.  Smith  109.]        M. 
If  land  be  conveyed  to  husband  and  wife 
and  a  third  person   to  hold  as  tenants  in 
common,  the  husband  and  wife,  being  one 
person  in  law,  take  one  half  between  them, 
and  the  third  person  takes  the  other  half. 
Johnson  v.  Hart,  6  W.  &  S.  319.     But  this 
tenancy  by  entireties  can  be  created  only 
during  the  existence  of  the  marriage.     If 
a  man  and  a  woman  be  seised  as  tenants 
in  common  and  afterwards  marry,  they  re- 
main tenants  in  common.    Co.  Litt.  187  b. 
And  where  husband  and  wife  are  tenants 
by   entireties    and  the    marriage    bond   is 
broken  by  divorce,  it  has  been  held  by  the 
Supreme  Court  of  Tennessee  that  the  ten- 
ancy by  entireties    is    dissolved,  and  the 
tenants  hold   in  common.     Ames  v.  Nor- 
man, 4  Sneed.  683,  696.     But  see  2  Bishop 
on  Mar.  &  Div.  sec.  716. 

i  Needham  v.  Branson,  5  Iredell  426 ; 
Tane  v.  Campbell,  7  Yerger  319.  The 
husband,  however,  can  in  his  own  name 
maintain  trespass  for  cutting  timber,  Fair- 


child  v.  Chastelleux,  1  Barr  176,  and  has 
the  absolute  control  of  the  property,  and 
can  convey  or  mortgage  it  during  his  life. 
Barber  v.  Harris,  16  Wendell  15.  R. 

2  But  if  the  wife  survive,  she  takes  the 
estate  by  survivorship  clear  of  the  hus- 
band's debts,  because  she  does  not  take 
through  or  under  him,  but  by  virtue  of 
the  paramount  grant  to  herself  in  the 
original  conveyance.  French  v.  Meehan, 
6  P.  F.  Smith  286.  And  under  the  Married 
Woman's  Act  in  Pennsylvania,  the  wife 
cannot  be  deprived  of  the  land  by  sale  of 
it  on  execution  for  the  husband's  debts,  in 
her  lifetime.  McCurdy  v.  Canning,  14  P. 
F.  Smith  40. 

s  In  some  of  the  States  of  this  country 
conveyances  from  a  husband  directly  to 
his  wife  have  been  sustained,  there  being 
no  fraud  on  creditors  in  contemplation. 
Penna.  Salt  Manufacturing  Co.  v.  Neel,  4 
P.  F.  Smith  9  ;  Bubier  v.  Roberts,  49  Me. 
465  ;  Allen  v.  Hooper,  50  Me.  372  ;  Wilder 
v.Brooks,  10  Minn.  50;  Hoffman  v.  Stigers, 
28  Iowa  310. 


227  OF    CORPOREAL    HEREDITAMENTS. 

which  he  may  have  incurred,  or  by  any  alienation  which  he  may  have 
attempted  to  make ;  for,  although  the  wife,  by  marriage,  is  prevented 
from  disposing  of  her  fee  simple  estates,  either  by  deed  or  will,1  yet 
neither  can  the  husband,  without  his  wife's  concurrence,  make  any  dis- 
position of  her  lands  to  extend  beyond  the  limits  of  his  own  interest.  If, 
however,  he  should  survive  his  wife,  he  will,  in  case  he  has  had  issue  by 
her  born  alive,  that  may  by  possibility  inherit  the  estate  as  her  heir, 
become  entitled  to  an  estate  for  the  residue  of  his  life  in  such  lands  and 
tenements  of  his  wife  as  she  was  solely  seised  of  in  fee  simple, 
or  fee  tail  in  possession. (s)  The  husband,  while  in  the  enjoyment  of 
this  estate,  is  *called  a  tenant  by  the  curtesy  of  England,  or, 
L  J  more  shortly,  tenant  by  the  curtesy.  If  the  wife's  estate  should 
be  equitable  only,  that  is,  if  the  lands  should  be  vested  in  trustees  for 
her  and  her  heirs,  her  husband  will  still,  on  surviving,  in  case  he  has  had 
issue  which  might  inherit,  be  entitled  to  be  tenant  by  the  curtesy,  in  the 
same  manner  as  if  the  estate  were  legal  ;{t)  for  equity  in  this  respect 
follows  the  law.2  But,  whether  legal  or  equitable,  the  estate  must  be  a 
several  one,  or  else  held  under  a  tenancy  in  common,  and  must  not  be 
one  of  which  the  wife  was  seised  or  possessed  jointly  with  any  other  per- 
son or  persons. (u)  The  estate  must  also  be  an  estate  in  possession  ;  for 
there  can  be  no  curtesy  of  an  estate  in  reversion  expectant  on  a  life 
interest  or  other  estate  of  freehold. (a;)     The  husband  must  also  have  had, 

(«)  Litt.  ss.  35,  52  ;  2  Black.  Com.  126  ;  1  Rop.  Husb.and  Wife  5  ;  Barker  v.  Barker, 
2  Sim.  249. 

(t)  1  Roper's  Husband  and  Wife  18.  When  the  lands  belong  to  the  wife  for  her 
separate  use,  there  are  conflicting  decisions  as  to  the  husband's  right  to  curtesy.  See 
Moore  v.  Webster,  V.-C.  S.,  L.  R.,  3  Eq.  267  ;  Appleton  v.  Rowley,  V.-C.  M.,  L.  R.,  8 
Eq.  139. 

(u)  Co.  Litt.  183  a;  1  Roper's  Husb.  and  Wife  12. 

(z)  2  Black.  Com.  127  ;  Watk.  Desc.  Ill  (121,  4th  ed.). 

1  The  student  will  of  course  bear  in  163  n.,  is  subject  to  the  same  rules  as  a 
mind  that  the  common-law  rule  is  here  legal  estate.  Robinson  v.  Codman,  1 
referred  to  ;  but  most  or  all  of  the  local  Sumner  128.  And  in  some  of  the  United 
statutes  heretofore  referred  to  (p.  223  n.)  States  this  right  of  the  husband  is  ex- 
give  to  the  wife  the  power  of  alienation  pressly  given  by  statute.  1  Greenl.  Cruise 
and  devise.  At  common  law,  however,  a  157,812.  But  where  the  estate  is  limited 
wife  may  be  grantee  in  a  deed  without  the  to  the  separate  use  of  the  wife,  free  from 
consent  of  her  husband,  Co.  Litt.  3  a,  and  the  control,  &c,  of  her  husband,  he  is  not 
though  he  may  divest  the  estate  by  his  entitled  to  curtesy.  Hearle  v.  Greenbank, 
dissent,  yet  if  he  neither  agree  nor  dis-  1  Ves.  298;  Cochran  v.  O'Hern,  4  W.  &  S. 
agree,  the  purchase  is  good.  Baxter  v.  98;  Rigler  v.  Cloud,  2  Harris  363.  R. 
Smith,  6  Binney  427.                                M.  But    see    Dubs    v.    Dubs,  7   Casey  149; 

2  This  has  reference,  of  course,  to  the  Johnson  v.  Fritz,  8  Wright  449  ;  Page's 
simple  case  of  an  equitable  fee  in  the  wife,  Estate,  25  P.  F.  Smith  87. 

which,  for  the  reasons  stated  supra  on  p. 


OF   THE    MUTUAL    RIGHTS    OF    HUSBAND    AND    WIFE.  228 

by  his  wife,  issue  born  alive,1  except  in  the  case  of  gavelkind  lands,  where 
the  husband  has  a  right  to  his  curtesy,  whether  he  has  had  issue  or  not ; 
but,  by  the  custom  of  gavelkind,  curtesy  extends  only  to  a  moiety  of  the 
wife's  lands,  and  ceases  if  the  husband  marries  again. (y)  The  issue 
must  also  be  capable  of  inheriting  as  heir  to  the  wife. (z)  Thus,  if  the 
wife  be  seised  of  lands  in  tail  male,  the  birth  of  a  daughter  only  will  not 
entitle  her  husband  to  be  tenant  by  curtesy  ;  for  the  daughter  cannot  by 
possibility  inherit  such  an  estate  from  her  mother.  And  it  is  necessary 
that  the  wife  should  have  acquired  an  actual  seisin  of  all  estates, 
of  which  it  was  possible  that  an  actual  seisin  could  be  obtained ;  for  the 
husband  has  it  in  his  own  *power  to  obtain  for  his  wife  an  actual  r*ooq-i 
seisin  ;  and  it  is  his  own  fault  if  he  has  not  done  so.(«)2  A  ten- 
ancy by  the  curtesy  is  not  now  of  very  frequent  occurrence  ;  the  rights  of 
husbands  in  the  lands  of  their  wives  are,  at  the  present  day,  generally 
ascertained  by  proper  settlements  made  previously  to  marriage.3 

By  a  statute  of  the  reign  of  Henry  VIII.(J)  power  was  given  for  all 
persons  of  full  age,  having  an  estate  of  inheritance  in  fee  simple  or  in 
fee  tail,  in  right  of  their  wives,  or  jointly  with  their  wives,  to  make 
leases,  with  the  concurrence  of  their  wives, (c)  of  such  of  the  lands  as  had 

(y)  Co.  Litt.  30  a,  n.  (1);  Bac.  Abr.  title  Gavelkind,  (A);  Rob.  Gavel.,  book 
ii.  c.  1. 

(z)  Litt.  s.  52  ;  8  Rep.  34  b. 

(a)  2  Black.  Com.  131  :  Parker  v.  Carter,  4  Hare  416.  In  the  first  edition  of  this 
work  a  doubt  is  thrown  out  whether,  under  the  new  law  of  inheritance,  a  husband 
can  ever  become  tenant  by  the  curtesy  to  any  estate  which  his  wife  has  inherited. 
The  reasons  which  have  now  induced  the  author  to  incline  to  the  contrary  opinion 
will  be  found  in  Appendix  (E). 

(b)  Stat.  32  Hen.  VIII.  c.  28.  (c)  Sect.  3. 

1  In  Pennsylvania,  however,  the  right  McCorry  v.  King,  3  Humphrey  267.  Where 
to  curtesy  is  by  the  act  of  8th  April,  1833,  an  adverse  possession  exists,  however,  the 
given  to  the  husband,  "  although  there  be  common-law  rule,  as  stated  in  the  text, 
no  issue  of  the  marriage."                     R.  prevails.     Mercer's    Lessee    v.    Selden,    1 

2  The  strictness  of  the  common  law  Howard  S.  C.  Rep.  54.  Curtesy  will  not 
which  thus  required  actual  seisin  on  the  attach,  however,  to  a  reversionary  interest 
part  of  the  wife  is  believed  not  to  prevail  in  the  wife,  dependent  on  an  estate  for 
generally,  if  at  all,  in  the  United  States  ;  a  life.  Stoddard  v.  Gibbs,  1  Sumner  263. 
right  of  entry  or  constructive  seisin  being  Nor  where  the  wife  has  a  mere  naked 
held  sufficient  in  cases  where  there  is  no  seisin  as  trustee.  Chew  v.  Commrs.  of 
actual  adverse  possession.  Bush  v.  Brad-  Southwark,  5  Rawle  161.  R. 
lee,  4  Day  298  ;  Kline  v.  Beebe,  6  Con-  3  This  remark  does  not  apply  in  the 
nect.  494 ;  Ellsworth  v.  Cook,  8  Paige  United  States,  where  marriage  settlements 
643  ;  Davis  v.  Mason,  1  Peters'  S.  C.  Rep.  are  comparatively  rare.  M. 
507;  Stoolfoos  v.  Jenkins,  8  S.  &  R.  175; 


229  OF   CORPOREAL   HEREDITAMENTS. 

been  most  commonly  let  to  farm  for  twenty  years  before,  for  any  term 
not  exceeding  twenty-one  years  or  three  lives,  under  the  same  restric- 
tions as  tenants  in  tail  were  by  the  same  act  empowered  to  lease.  This 
statute,  so  far  as  it  respects  tenants  in  tail,  has  already  been  referred 
to.(d)  It  was  repealed  by  the  act  to  facilitate  leases  and  sales  of  settled 
estates  ;(e)  but  this  act  has  been  itself  repealed  by  the  Settled  Estates 
Act,  1877.  This  act  now  empowers  every  person  entitled  to  the  posses- 
sion or  the  receipt  of  the  rents  and  profits  of  any  unsettled  estate,  as 
tenant  by  the  curtesy,  or  in  right  of  a  wife  who  is  seised  in  fee,  to 
demise  the  same  (except  the  principal  mansion-house  and  the  demesnes 
thereof,  and  other  lands  usually  occupied  therewith),  for  any  term  not 
exceeding  twenty-one  years  in  England,  or  thirty-five  years  in  Ireland, 
subject  to  the  same  restrictions  as  before  mentioned  in  the  case  of  a 
tenant  for  life.(/)  And  any  such  demise  will  be  valid  against 
L  J  *the  wife  of  the  person  granting  the  same,  and  any  person 
claiming  through  or  under  her.(^)  By  a  statute  of  Anne,(7i)  every  hus- 
band seised  in  right  of  his  wife  only,  who,  after  the  determination  of  his 
estate  or  interest,  without  the  express  consent  of  the  person  next  imme- 
diately entitled  after  the  determination  of  such  estate  or  interest,  shall 
hold  over  and  continue  in  possession  of  any  hereditaments,  shall  be 
adjudged  to  be  a  trespasser;  and  the  full  value. of  the  profits  received 
during  such  wrongful  possession  may  be  recovered  in  damages  against 
him  or  his  executors  or  administrators. 

Hitherto  we  have  seen  the  extent  of  the  husband's  interest,  and  power 
of  disposition,  apart  from  his  wife.  If  land  should  be  settled  in  trust 
for  the  separate  use  of  the  wife,  with  a  clause  restraining  alienation,  we 
have  seen  that  neither  husband  nor  wife  can  make  any  disposition.  But, 
in  all  other  cases,  the  husband  and  wife  may  together  make  any  such 
disposition  of  the  wife's  interest  in  real  estate  as  she  could  do  if  un- 
married. The  mode  in  which  such  dispositions  were  formerly  effected 
was  by  a  fine  duly  levied  in  the  Court  of  Common  Pleas.  We  have 
already  had  occasion  to  advert  to  fines,  in  respect  to  their  former  opera- 
tion on  estates  tail.(^)  They  were,  as  we  have  seen,  fictitious  suits 
commenced  and  then  compromised  by  leave  of  the  court,  whereby  the 
lands  in  question  were  acknowledged  to  be  the  right  of  one  of  the  parties. 
Whenever  a  married  woman  was  party  to  a  fine,  it  was  necessary  that 

(d)  Ante,  p.  56.  (e)  Stat.  19  &  20  Vict,  c.  120,  s.  35. 

(/)  Stat.  40  &  41  Vict.  c.  18,  s.  46.  See  ante,  p.  26. 

(ff)  Stat.  40  &  41  Vict.  c.  18,  s.  47.  (A)  Stat.  6  Anne,  c.  18,  s.  5. 

(i)  Ante,  p»  48. 


OF   THE    MUTUAL    RIGHTS    OF    HUSBAND    AND   WIFE.  230 

she  should  be  examined  apart  from  her  husband,  to  ascertain  whether 
she  joined  in  the  fine  of  her  own  free  will,  or  was  compelled  to  it  by  the 
threats  and  menaces  of  her  husband.^')     Having  this  protection,  a  fine 
by  husband  and  wife  was  an  effectual  conveyance,  as  well  of  the  wife's  as 
of  the  husband's  interest  of  every  kind,  *in  the  land  comprised    j-*23l] 
in  the  fine.     But,  without  a  fine,  no  conveyance  could  be  made  of 
the  wife's  lands ;  thus,  she  could  not  leave  them  by  her  will,  even  to  her 
husband;  although,  by  means  of  the  Statute  of  Uses, (A;)  a  testamentary 
appointment  of  lands,  in  the  nature  of  a  will,  might  be  made  by  the  wife 
in  favor  of  her  husband,  in  a  manner  to  be  hereafter  explained.(7)     And 
in  this  respect  the  law  still  remains  unaltered,  although  a  change  has 
been  made  in  the  machinery  for  effecting  conveyances  of  the  lands  of 
married  women.     The  cumbrous  and  expensive  nature  of  fines  having 
occasioned  their  abolition,  provision  has  now  been  made  by  the  Act  for  the 
abolition  of  Fines  and  Recoveries,(m)  for  the  conveyance  by  deed  merely 
of  the  interests  of  married  women  in  real  estate.     Every  kind  of  con- 
veyance or  disclaimer  of  freehold  estates  which  a  woman  could  execute 
if  unmarried  may  now  be  made  by  her  by  a  deed  executed  with  her 
husband's    concurrence  :(n)    but   the   separate   examination,  which  was 
before  necessary  in  the  case  of  a  fine,  is  still  retained ;  and  every  deed, 
executed  under  the  provisions  of  the  act,  must  be  produced  and  acknow- 
ledged by  the  wife  as  her  own  act  and  deed,  before  a  judge  of  one  of  the 
superior  courts  at  Westminster,  or  of  any  county  court,  or  a  master  in 
Chancery,  or  two  commissioners,^)  who  must,  before  they  receive  the 
acknowledgment,  examine  her  apart  from  her  husband   touching   her 
knowledge  of  the  deed,  and  must  ascertain  whether  she  freely  and  volun- 
tarily consents  thereto.(p)     A  recent  statute(</)  removes  doubts  which 
might  arise,  in  consequence  of  any  person  *  taking  the  acknow-    r*232] 
ledgment  being  an  interested  party.1     The  Vendor  and  Pur- 

(/)  Cruise  on  Fines  108,  109.  (*)  27  Hen.  VIII.  c.  10,  ante,  p.  157. 

(I)  See  post,  the  chapter  on  Executory  Interests. 

(m)  Stat.  3  &  4  Will.  IV.  c.  74  ;   ante,  p.  48. 

(n)  Sect.  77  ;   stat.  8  &  9  Vict.  c.  106,  s.  7. 

(o)  Stats.  3  &  4  Will.  IV.  c.  74,  s.  79  ;  19  &  20  Vict.  c.  108,  s.  73. 

(;;)  Stat.  3  &  4  Will.  IV.  c.  74,  s.  80.  (?)  Stat.  17  &  18  Vict.  c. 


75. 


i  Statutes  in  effect  similar  to  that  re-  this  country  should  have  adopted  a  custom 
ferred  to  in  the  text  are  in  force  in  all  the  which  soon  grew  into  a  law,  of  passing  the 
United  States;  but  it  is  remarkable  that  estate  of  a  married  woman,  whether  ia  her 
while  in  England  the  troublesome  and  ex-  own  property  or  that  of  her  husband,  by  a 
pensive  method  of  levying  a  fine,  in  order  simple  acknowledgment  in  some  colonies 
to  pass  the  estate  of  a  married  woman,  with  and  in  some  without  the  separate  ex- 
continued  until  so  recently,  the  settlers  of  animation  of  the  wife.     Davey  v.  Turner,  1 


232  OF    CORPOREAL    HEREDITAMENTS. 

chaser  Act,  1874,(r)  now  provides(s)  that  when  any  hereditament  shall 
be  vested  in  a  married  woman  as  a  bare  trustee,^)  she  may  convey  the 
same  as  if  she  were  a  feme  sole. 

2.  As  to  the  rights  of  the  wife  in  the  lands  of  her  husband.  We  have 
seen  that,  during  the  coverture,  all  the  power  is  possessed  by  the  hus- 
band, even  when  the  lands  belong  to  the  wife,  except  in  cases  which  fall 
within  the  Married  Women's  Property  Act,  1870  ;  and  of  course  this  is 
the  case  when  they  are  the  husband's  own.  After  the  decease  of  her 
husband,  the  wife,  however,  becomes,  in  some  cases,  entitled  to  a  life 
interest  in  part  of  her  deceased  husband's  lands.  This  interest  is  termed 
the  dower  of  the  wife.  And  by  the  act  of  parliament  for  the  amendment 
of  the  law  relating  to  dower,(w)  the  dower  of  women  married  after  the 
1st  of  January,  1834,  is  placed  on  a  different  footing  from  that  of  women 
who  were  married  previously.1  But  as  the  old  law  of  dower  still  regu- 
lates the  rights  of  all  women  who  were  married  on  or  before  that  day, 
it  will  be  necessary,  in  the  first  place,  to  give  some  account  of  the  old 
law  before  proceeding  to  the  new. 

Dower,  as  it  existed  previously  to  the  operation  of  the  Dower  Act,  was 
of  very  ancient  origin,  and  retained  an  inconvenient  property  which 
accrued  to  it  in  the  simple  times  when  alienation  of  lands  was  far  less 
frequent  than  at  present.  If  at  any  time  during  the  coverture  the  hus- 
band became  solely  seised  of  any  estate  of  inheritance,  that  is  fee  simple 
or  fee  tail,  in  lands  to  which  any  issue,  which  the  wife  might  have  had, 
might  by  possibility  have  *been  heir,(:r)  she  from  that  time  be- 
J  came  entitled,  on  his  decease,  to  have  one  equal  third  part  of  the 
same  lands  allotted  to  her,  to  be  enjoyed  by  her  in  severalty  during  the 

(r)  Stat.  37  &  38  Vict.  c.  78,  passed  7th  August,  1874. 

(*)  Sect.  6.    .  (t)  See  ante,  pp.  116,  166. 

(u)  Stat.  3  &  4  Will.  IV.  c.  105. 

(x)  Litt.  ss.  36,  53  ;  2  Black.  Com.  131  ;  1  Roper's  Husband  and  Wife  332. 


Dallas  11  ;  Lloyd's  Lessees  v.  Taylor,  Id.  the  devisee  or  the  purchaser  under  any 
17;  Fowler  v.  Shearer,  7  Mass  20;  Jack-  deed  in  which  she  has  not  joined.  See 
son  v.  Gilchrist,  15  Johnson  109.  R.  infra,  p.  236.  In  several  of  the  United 
1  That  is  to  say,  by. its  operation  no  States,  such  as  Vermont,  New  Hampshire, 
widow  is  entitled  to  dower  out  of  any  land  Connecticut,  Tennessee,  North  Carolina, 
which  her  husband  shall  have  disposed  of  and  Georgia,  the  right  of  dower  is  restrict- 
in  his  lifetime  or  devised  by  his  will ;  she  ed  by  statute  to  lands  of  which  the  hus- 
is  therefore  only  entitled  to  dower  as  band  dies  seised,  but  as  against  a  devisee 
against  the  heir  at  law,  but  not  as  against  it  will  attach.  R. 


OF   THE    MUTUAL    RIGHTS    OF    HUSBAND    AND    WIFE. 


233 


remainder  of  her  life.(#)  This  right,  having  once  attached  to  the  lands. 
adhered  to  them,  notwithstanding  any  sale  or  devise  which  the  husband 
mio-ht  make.1  It  consequently  became  necessary  for  the  husband,  when- 
ever he  wished  to  make  a  valid  conveyance  of  his  lands,  to  obtain  the 
concurrence  of  his  wife,  for  the  purpose  of  releasing  her  right  to  dower. 
This  release  could  be  effected  only  by  means  of  a  fine,  in  which  the  wife 
was  separately  examined.  And  when,  as  often  happened,  the  wife's 
concurrence  was  not  obtained  on  account  of  the  expense  involved  in 
levying  a  fine,  a  defect  in  the  title  obviously  existed  so  long  as  the  wife 

(«/)  See  Dickin  v.  Haruer,  1  Drew.  &  Smale  284. 


1  By  the  common  law  as  stated  by  Coke, 
it  seems  that  the  wife  was  entitled  to  ad- 
measurement of  dower,  as  against  the  heir, 
according  to  the  value  of  the  land  at  the 
time  of  the  dower  being  assigned  to  her, 
whether  that  value  was  greater  or  less 
than  "  in  the  time  of  the  husband,"  and 
whether  occasioned  by  improvement  or 
not :  Co.  Litt.  32  a  ;  the  reason  for  which 
was  that  if  the  husband  died  seised,  the 
heir  might  assign  the  dower  when  he 
pleased,  and  if  he  neglected  it  and  improved 
the  land  by  cultivation  or  improvement,  it 
was  his  voluntary  act  with  knowledge  of 
his  rights,  and  the  widow  takes  the  value 
as  it  is  at  the  time  of  the  assignment  of 
dower.  But  as  respects  a  purchaser,  the 
rule  was  different,  and  we  find  in  Mr.  Har- 
grave's  note  that  "  if  feoffee  improve  by 
building,  yet  dower  shall  be  as  it  was  in 
the  seisin  of  the  husband." 

On  this  side  of  the  Atlantic  a  further 
distinction  is  taken  in  many  of  the  States 
as  regards  the  case  of  the  purchaser,  and 
though  in  none  of  them  is  the  wife  allowed 
to  receive  any  advantage  by  reason  of 
improvements,  yet  there  are  many  cases 
which  give  her  the  benefit  of  the  increase 
of  value  from  improvements  near  the 
property,  or  the  general  prosperity  of  that 
section  of  country.  The  leading  case  is 
Thompson  v.  Morrow,  5  Serg.  &  Rawle 
289,  decided  in  Pennsylvania,  in  1819, 
and  the  rule  there  adopted  has  not  only  been 
adhered  to  in  that  State,  Benner  v.  Evans,  3 
Penns.  456;  Shirly  v.  Shirly,  5  Watts  328, 
but  approved  and  followed  in  many  others. 


Powell  v.  Monson  Man.  Co.,  3  Mason  365  ; 
Misher  v.  Misher,  3  Shepley  372  ;  Greer  v. 
Tenont,  2  Harrington  336  ;  Smith  v.  Addle- 
man,  5  Blackford  406  ;  Taylor  v.  Broderick, 
1  Dana  348  ;  Dunseth  v.  Bank  of  United 
States,  6  Ohio  76.  [Carter  v.  Parker,  28  Me. 
509  ;  Manning  v.  Laboree,  33  Me.  343  ;  Sum- 
mers v.  Babb,  13  Ills.  485  ;  Johnson  v.  Van- 
dyke, 9  Ala.  422.  M.]  In  New  York  the 
cases  of  Humphrey  v.  Pinney,  2  Johnson 
484,  and  Shaw  v.  White,  13  Id.  484  ;  Dor- 
chester-v.  Coventry,  11  Id.  179  (all  decided 
before  Thompson  v.  Morrow),  adhered  to 
the  common-law  rule.  Chancellor  Kent, 
however,  appeared  to  consider  the  ques- 
tion an  open  one,  in  Hale  v.  James,  6 
Johns.  Ch.  R.  258,  and  in  his  Commenta- 
ries (4  Com.  68)  says,  "The  better  and 
more  reasonable  American  doctrine  upon 
this  subject  I  apprehend  to  be  that  the 
improved  value  of  the  land  from  which 
the  widow  is  to  be  excluded  in  the  assign- 
ment of  dower,  as  against  a  purchaser  of 
her  husband,  is  that  which  has  arisen 
from  the  actual  labor  and  money  of  the 
owner,  and  not  from  that  which  has  arisen 
from  intrinsic  or  general  causes." 

This  language,  however,  was  not  fully 
concurred  with  in  Walker  v.  Schuyler, 
10  Wendell  485,  where  the  law  was  con- 
sidered to  be  fully  settled  against  the 
widow's  right  to  any  increase  of  value,  as 
against  the  purchaser.  [Van  Gelder  v. 
Post,  2  Edw.  577  ;  Parks  v.  Hardey,  4 
Bradf.  15.  M.]  And  the  law  is  held  the 
same  way  in  Virginia,  Tod  v.  Baylor,  4 
Leigh  509.  R. 


233 


OF    CORPOREAL    HEREDITAMENTS. 


lived.  As  the  right  to  dower  was  paramount  to  the  alienation  of  the 
husband,  so  it  was  quite  independent  of  his  debts, — even  of  those  owing 
to  the  crown. (z)1  It  was  necessary,  however,  that  the  husband  should 
be  seised  of  an  estate  of  inheritance  at  law ;  for  the  Court  of  Chancery, 
whilst  it  allowed  to  husbands  curtesy  of  their  wives'  equitable  estates, 
withheld  from  wives  a  like  privilege  of  dower  out  of  the  equitable  estates 
of  their   husbands. (a)2     The  estate,  moreover,  must  have  been  held  in 

(z)  Co.  Litt.  31  a  ;  1  Roper's  Husband  and  Wife  411. 
(a)  1  Roper's  Husband  and  Wife  354. 


1  It  is  believed  that  the  rule  is  otherwise 
in  nearly  all  of  the  United  States,  and  that 
the  right  of  the  widow  to  dower  is  sub- 
servient to  the  rights  of  creditors  of  every 
class.  R. 

2  The  origin  of  this  distinction  was  thus 
explained  by  Lord  Redesdale  in  D'Arcy  v. 
Blake,  2  Schoales  &  Lefroy  388  :  "  The 
general  principle  on  which  courts  of  equity 
have  proceeded  in  cases  of  dower  is  that 
dower  is  to  be  considered  as  a  mere  legal 
right,  and  that  equity  ought  not  to  create 
the  right  where  it  does  not  subsist  at  law. 
That,  therefore,  there  can  be  no  dower  of 
an  equity  of  redemption  reserved  upon  a 
mortgage  in  fee,  though  there  may  of  an 
equity  of  redemption  upon  a  mortgage  for 
a  term  of  years,  because,  in  that  case,  the 
law  gives  dower  subject  to  the  term.  A 
court  of  equity  will  assist  a  widow  by 
putting  a  term  out  of  her  way,  where  third 
persons  are  not  interested.  But  against  a 
purchaser,  a  court  of  equity  will  not  give 
that  assistance,  as  in  Lady  Radnor  v.  Van- 
debendy,  Prec.  Chan.  65,  Show.  Pari.  Cases 
96.  The  difficulty  in  which  the  courts  of 
equity  have  been  involved  with  respect  to 
dower,  I  apprehend,  originally  arose  thus  : 
They  had  assumed,  as  a  principle,  in  act- 
ing upon  trusts,  to  follow  the  law  ;  and, 
according  to  this  principle,  they  ought,  in 
all  cases  where  rights  attached  on  legal 
estates,  to  have  attached  the  same  rights 
upon  trusts,  and,  consequently,  to  have 
given  dower  of  an  equitable  estate.  It 
was  found,  however,  that  in  cases  of  dower, 
this  principle,  if  pursued  to  the  utmost, 
would  affect  the  titles  to  a  large  propor- 
tion of  the  estates  in  the  country  ;  for  that 


parties  had  been  acting,  on  the  footing  of 
dower,  upon  a  contrary  principle,  and  had 
supposed  that,  by  the  creation  of  a  trust, 
the  right  of  dower  would  be  prevented 
from  attaching.  Many  persons  had  pur- 
chased under  this  idea,  and  the  country 
would  have  been  thrown  into  the  utmost 
confusion  if  courts  of  equity  had  followed 
their  general  rule  with  respect  to  trusts 
in  the  case  of  dower.  But  the  same  ob- 
jection did  not  apply  to  tenancy  by  the 
curtesy,  for  no  person  would  purchase  an 
estate  subject  to  tenancy  by  the  curtesy, 
without  the  concurrence  of  the  person  in 
whom  that  right  was  vested.  This  I  take 
to  be  the  true  reason  of  the  distinction  be- 
tween dower  and  tenancy  by  the  curtesy. 
It  was  necessary  for  the  security  of  pur- 
chasers, of  mortgagees,  and  of  other  per- 
sons taking  the  legal  estates,  to  depart  from 
the  general  principle  in  case  of  dower,  but 
it  was  not  necessary  in  the  case  of  tenancy 
by  the  curtesy.  Pending  the  coverture,  a 
woman  could  not  alien  without  her  hus- 
band, and  therefore,  nothing  she  could  do 
could  be  understood  by  a  purchaser  to 
affect  his  interest ;  but  where  the  husband 
was  seised  or  entitled  in  his  own  right,  he 
had  full  power  of  disposing,  except  so  far 
as  the  dower  might  attach  ;  and  the  gene- 
ral opinion  having  long  been  that  dower 
was  a  mere  legal  right,  and  that,  as  the 
existence  of  a  trust-estate  previously  cre- 
ated prevented  the  right  of  dower  attach- 
ing at  law,  it  would  also  prevent  the  prop- 
erty from  all  claim  of  dower  in  equity,  and 
many  titles  depending  on  this  opinion, 
it  was  found  that  it  would  be  mischievous 
in  this  instance  to  adhere  to  the  general 


OF   TIIE    MUTUAL   RIGHTS    OF   HUSBAND    AND   WIFE. 


233 


severalty  or  in  common,  and  not  in  joint  tenancy;  for  the  unity  of  interest 
which  characterizes  a  joint  tenancy  forbids  the  intrusion  into  such  a  ten- 
ancy of  the  husband  or  wife  of  any  deceased  joint  tenant :  on  the  decease 
of  any  joint  tenant,  his  surviving  companions  are  already  entitled,  under 
the  original  gift,  to  the  whole  subject  of  the  tenancy.^)1  The  estate 
was  *also  required  to  be  an  estate  of  inheritance  in  possession  ;2  r*234] 
although  a  seisin  in  law,  obtained  by  the  husband,  was  sufficient 

(b)  1  Roper's  Husband  and  Wife  366  ;  ante,  p.  134  et  seq. 


principle    that  equity  should    follow   the 
law  ;  and  it  has  been  so  long  and  so  clearly 
settled    that    a  woman    should   not   have 
dower  in  equity  who  is  not  entitled  at  law, 
that  it  would   be   shaking  everything  to 
attempt  to  disturb  the  will.     In  point  of 
remedy,  a  woman  claiming  dower  may  be 
assisted  in  equity;  a  court  of  equity  will 
put  out  of  her  way  a  term  which  prevents 
her  obtaining  possession  at  law  ;  but  that 
is  only  as  against  an  heir  or  volunteer,  not 
a.  purchaser;  the  heir  or  volunteer  being 
considered  as  claiming  in  no  better  right 
than  she  does.   When,  therefore,  any  ques- 
tion   of    dower    has    arisen    in    courts    of 
equity,  and  doubts  have  been  entertained 
of  the  title  to  dower,  the  constant  practice 
in  England  has  been  to  put  the  widow  to 
bring    her   writ   of    dower    at   law.     The 
courts  will  assist  her  in  trying  her  right, 
and  enjoying  the  benefit  of  it,  if  deter- 
mined at  law  in  her  favor,  by  giving  her  a 
discovery  of  deeds  ;  by  ascertaining  metes 
and  bounds;  and  they  do  not  require  her 
to  execute  the  writ  with  all  the  formalities 
necessary  at  law  ;  and  the  right  being  as- 
certained by  judgment  at  law,  will  give 
her  possession  according  to  her  right ;  but 
still  they  require  that  the  question  of  her 
title  to  dower,  if  subject  to  doubt,  should 
be  determined  at  law." 

For  the  same  reason  a  wife  was  not 
dowable  at  common  law  of  an  equity  of 
redemption,  the  legal  title  being  out  of.  the 
husband.  But  by  the  statute  3  &  4  Will. 
IV.  c.  105,  referred  to  in  the  text  at  page 
232,  the  law  was  altered,  and  the  wife's 
right  of  dower  is  now  attached  to  the  equi- 
table as  well  as  to  the  legal  estates  of  the 


husband,  provided  always  he  has  neither 
conveyed  nor  devised  them ;  supra,  p. 
227. 

On  this  side  of  the  Atlantic,  usage  in 
some  States,  and  legislation  in  others,  has 
given  to  the  wife  a  right  of  dower  in  the 
equitable  estate  of  her  husband.  Shoe- 
maker v.  Walker,  2  S.  &  R.  554 ;  Reed  v. 
Morrison,  12  Id.  18;  Smiley  v.  Wright,  2 
Ohio  507;  Crabb  v.  Pratt,  15  Alabama 
843;  Robinson  v.  Miller,  1  B.  Monroe  91  ; 
1  Greenl.  Cruise  165/  As  respects  the 
equity  of  redemption  of  a  mortgagor,  as 
in  perhaps  all  the  United  States  the  mort- 
gage is  looked  upon  as  a  mere  security  for 
the  payment  of  the  debt,  the  legal  estate 
is  considered  as  in  the  mortgagor  as  to  all 
persons  except  the  mortgagee  and  his  as- 
signs, and  the  wife  may  be  considered  as 
dowable  at  law  of  her  husband's  estate. 
Barker  v.  Parker,  17  Mass.  564;  Simonton 
v.  Gray,  34  Maine  50 ;  Run'yan  v.  Stewart, 

12  Barbour  537.  R- 

1  Where  a  partition  takes  place  between 
tenants  in  common,  it  is  obvious  that  the 
dower  attaches  itself  to  the  ascertained 
purpart  of  the  husband.   Potter  v.  Wheeler, 

13  Mass.  504  ;  Mosher  v.  Mosher,  32  Maine 
412.  R- 

2  Thus  a  wife  is  not  entitled  to  dower 
out  of  an  estate  in  remainder  expectant  on 
an  estate  of  freehold,  because  there  is  no 
seisin  in  the  husband.  Co.  Litt.  32  a; 
Dunham  v.  Osborn,  1  Paige  634;  Green  v. 
Putnam,  1  Barbour  500  ;  Otis  v.  Parshley, 
10  New  Hamp.  403  ;  Eldredge  v.  Forestal, 
7  Mass.  253  ;  Blood  v.  Blood,  23  Pickering 
80  ;  but  she  is  dowable  of  a  reversion  ex- 
pectant on  a  term  for  years,  by  reason  of 


234 


OF    CORPOREAL    HEREDITAMENTS. 


to  cause  his  wife's  right  of  dower  to  attach. (c)  In  no  case,  also,  was  any 
issue  required  to  be  actually  born  ;  it  was  sufficient  that  the  wife  might 
have  had  issue  who  might  have  inherited.  The  dower  of  the  widow  in 
gavelkind  lands  consisted,  and  still  consists,  like  the  husband's  curtesy, 
of  a  moiety,  and  continues  only  so  long  as  she  remains  unmarried  and 
chaste^c?)1 

(c)  Co.  Litt.  31  a. 

(d)  Bac.  Abr.  tit.  Gavelkind  (A) ;  Rob.  Gav.,  book  2,  c.  2. 


the  husband  being  seised  of  the  freehold. 
Co.  Litt.  32  a.  R. 

In  States  like  Pennsylvania,  where  the 
intestate  laws  apply  generally  to  all  the 
estate  and  property  of  an  intestate,  the 
generality  of  the  words  includes  estates  in 
remainder,  and  consequently  the  widow 
has  such  interest  as  is  given  to  her  by 
these  laws  in  a  vested  remainder  owned 
by  her  husband  at  the  time  of  his  death. 
Cote's  Appeal,  29  P.  F.  Smith  235. 

1  It  is  not,  however,  only  with  respect  to 
the  tenure  by  gavelkind  that  chastity  on 
the  part  of  the  wife  is  necessary  to  entitle 
her  to  dower.  At  common  law,  indeed,  it 
would  seem  that  a  divorce  on  the  ground 
of  adultery  was  no  bar  to  dower:  2  Inst. 
435.  But  the  34th  chapter  of  the  Statute 
of  Westminster  the  Second  (13  Ed.  I.  st.  1, 
c.  34)  declared  that  "  if  a  wife  willingly 
leave  her  husband,  and  go  away  and  con- 
tinue with  her  advouterer,  she  shall  be 
barred  from  every  action  to  demand  her 
dower  if  she  be  convict  therefrom,  except 
that  her  husband  willingly  and  without 
coercion  of  the  church  reconcile  her  to 
suffer  her  to  dwell  with  him,  in  which  case 
she  shall  be  restored  to  her  action."  In 
his  commentary  on  this  statute  in  his  2d 
Institutes,  Coke  says,  "  Albeit  the  words 
of  this  branch  be  in  the  conjunctive,  yet 
if  the  woman  be  taken  away,  not  sponte, 
but  against  her  will,  and  after  consent, 
and  remain  with  the  adulterer,  without 
being  reconciled,  &c,  she  shall  lose  her 
dower;  for  the  cause  of  the  bar  of  her 
dower  is  not  the  manner  of  the  going  away, 
but  the  remaining  with  the  adulterer  in 
avowtry  without  reconciliation,  that  is  the 
bar  of  the  dower;"  for  which  he  cites  ''a 
rare  and  strange  case"  which  occurred  only 


a  few  years  after  the  statute  was  passed,  in 
which  John  De  Comoys  by  deed  delivered 
and  committed  his  wife  Margaret  to  Lord 
William  Paynel,  so  that  she  should  be  and 
remain  with  him  according  to  his  will. 
After  her  husband's  death  she  demanded 
her  dower,  but  it  was  adjudged  against  her 
by  reason  of  the  adultery  ;  and  in  accord- 
ance with  this  authority  it  was  held  in  a 
somewhat  recent  case  that  adultery  is  a 
bar  though  committed  after  husband  and 
wife  have  separated  by  mutual  consent : 
Hethrington  v.  Graham,  6  Bingham  135. 

The  statute  has,  on  this  side  of  the  At- 
lantic, either  been  substantially  re-enacted, 
or  its  provisions  adopted  as  a  part  of  the 
common  law  of  the  country:  Coggswell  v. 
Tibbetts,  3  New  Hamp.  41  ;  4  Kent's  Com. 
53;  Lecompte  v.  Wash,  9  Missouri  551. 
By  the  Revised  Statutes  of  New  York, 
however,  the  wife  only  forfeits  her  dower 
in  case  of  a  divorce  on  the  ground  of  adul- 
tery, or  a  conviction  of  that  offence.  Rey- 
nolds v.  Reynolds,  24  Wendell  193  ;  Cooper 
v.  Whitney,  3  Hill  95.  [And  it  has  been 
held  that  divorce  for  adultery  is  the  crea- 
ture of  the  statute,  having  such  incidents 
only  as  the  statutes  attach  to  it,  and  as 
these  enumerate  certain  causes  of  loss  of 
dower,  the  right  will  remain  in  all  other 
cases.  Therefore  a  woman  divorced  on 
account  of  the  husband's  adultery  is  en- 
titled to  dower  in  his  lands  :  Wait  v.  Wait, 
4  Comstock  95;  (reversing  s.  c.  4  Barb. 
102  ;)  Forrest  v.  Forrest,  6  Duer  102.  M.] 
But  a  woman  married  to  a  man  who  has 
another  wife  living  at  the  time,  acquires 
no  claim  to  dower:  Smart  v.  Whaley,  6 
Smedes  &  Marshall  308  ;  Donnelly  v.  Don- 
nelly, 8  B.  Monroe  113;  even  if  the  first 
wife   die  before  her  husband :  Higgins  v. 


OF   THE    MUTUAL    RIGHTS    OF    HUSBAND    AND    WIFE.  234 

In  order  to  prevent  this  inconvenient  right  from  attaching  on  newly- 
purchased  lands,  and  to  enable  the  purchaser  to  make  a  title  at  a  future 
time,  without  his  wife's  concurrence,  various  devices  were  resorted  to  in 
the  framing  of  purchase-deeds.     Tbe  old-fashioned  method  of  barring 
dower  was  to  take  the  conveyance  to  the  purchaser  and  his  heirs  to  the 
use  of  the  purchaser  and  a  trustee  and  the  heirs  of  the  purchaser  :  but  as 
to  the  estate  of  the  trustee,  it  was  declared   to  be  in   trust  only  for  the 
purchaser  and  his  heirs.     By  this  means   the  purchaser  and  the  trustee 
became  joint  tenants  for  life  of  the  legal  estate,  and  the  remainder  of  tbe 
inheritance  belonged  to  the  purchaser.     If,  therefore,  the  purchaser  died 
(luring  the  life  of  his  trustee,  the  latter  acquired  in  law  an  estate  for  life 
by  survivorship ;  and  as  the  husband  had  never  been  solely  seised,  the 
wife's  dower  never  arose ;  whilst  the  estate  for  life  of  the  trustee  was 
subject  in  equity  to  any  disposition  which  the  husband  might  think  fit  to 
make  by  his  will.     The  husband  and  his  trustee  might  also,  at  any  time 
during  their  joint  lives,  make  a  valid  conveyance  to  a  purchaser  without 
the  wife's  concurrence.     The  defect  of  the  plan  was  that  if  the  trustee 
happened  to  die  during  the  *husband's  life,  the  latter  became  at    r*oqc-i 
once  solely  seised  of  an  estate  in  fee  simple  in  possession  ;  and 
the  wife's  right  to  dower  accordingly  attached.     Moreover,  the  husband 
could  never  make  any  conveyance  of  an  estate  in  fee  simple  without  the 
concurrence  of  his  trustee  so  long  as  he  lived.     This  plan,  therefore, 
gave  way  to  another  method  of  framing  purchase-deeds,  which  will  be 
hereafter  explained,(e)  and  by  means  of  which  the  wife's  dower  under 
the  old  law  is  effectually  barred,  whilst  the   husband  alone,  without  the 
concurrence  of  any  other  person,  can  effectually  convey  the  lands. 

The  right  of  dower  might  have  been  barred  altogether  by  a  jointure, 
agreed  to  be  accepted  by  the  intended  wife  previously  to  marriage,  in 
lieu  of  dower.1  This  jointure  was  either  legal  or  equitable.  A  legal 
jointure  was  first  authorized  by  the  Statute  of  Uses,(/)  which,  by  turning 
uses  into  legal  estates,  of  course  rendered  them  liable  to  dower.  Under 
the  provisions  of  this  statute,  dower  may  be  barred  by  the  wife's  accept- 
ance previously  to  marriage,  and  in  satisfaction  of  her  dower,  of  a  com- 
petent livelihood  of  freehold  lands  and  tenements,  to  take  effect  in  profit 
or  possession  presently  after  the  death  of  the  husband  for  the  life  of  the 

(e)  See  pout,  the  chapter  on  Executory  Interests.  (/)  27  Hen   VIII.  c.  10. 

Breen,  9  Missouri  497  ;  for  tbe  marriage  1  And  this  jointure,  unlike  dower,  is  not 
■was,  of  course,  originally  void.  Riddlesden  forfeited  by  adultery.  Seagrave  v.  9ea- 
v.  Wogan,  Cro.  Eliz.  858.  R.         grave,  13  Vesey  443.  R. 


235 


OF   CORPOREAL    HEREDITAMENTS. 


■wife  at  least. (g)  If  the  jointure  be  made  after  marriage,  the  wife  may 
elect  between  her  dower  and  her  jointure.(A)  A  legal  jointure,. however, 
has  in  modern  times  seldom  been  resorted  to  as  a  method  of  barring 
dower ;  when  any  jointure  has  been  made,  it  has  usually  been  merely  of 
an  equitable  kind :  for  if  the  intended  wife  be  of  age,  and  a  party  to  the 
settlement,  she  is  competent  in  equity  to  extinguish  her  title  to  dower 
r„.oqfi-i  upon  any  terms  *to  which  she  may  think  proper  to  agree.^') 
And  if  the  wife  should  have  accepted  an  equitable  jointure,  the 
Court  of  Chancery  will  effectually  restrain  her  from  setting  up  any  claim 
to  her  dower.  But  in  equity,  as  well  as  at  law,  the  jointure,  in  order  to 
an  absolute  bar  of  dower,  must  be  made  before  marriage.1 

(ff)  Co.  Litt.  36  b.  ;  2  Black.  Com.  137  ;   1  Roper's  Husband  and  Wife  462. 

(h)  1  Roper's  Husband  and  Wife  468. 

(/)  Ibid.  488  ;  Dyke  v.  Randall,  2  De  G.,  M.  &  G.  209. 


1  This  subject  would  seem  to  require  a 
somewhat  fuller  illustration.  By  the  com- 
mon law,  the  right  to  dower  could  not  be 
barred  by  any  mode  of  assurance,  whether 
made  before  or  after  the  marriage,  be- 
cause, first,  it  was  a  maxim  that  no  right 
could  be  barred  until  it  had  accrued,  and, 
second,  no  right  to  an  estate  of  freehold 
could  be  barred  by  any  manner  of  collateral 
satisfaction  or  recompense  :  Co.  Litt.  36  b  ; 
Vernon's  Case,  4  Coke  1  ;  and  a  release 
made  during  the  marriage  was  of  course 
void,  the  wife  not  being  sui  juris.  For  this 
and  other  reasons  referred  to  in  a  former 
chapter  (Ch.  VIII.)  it  became  common  for 
persons  to  convey  their  lands  to  uses,  so 
that  "  before  the  making  of  the  statute  of 
27  Hen.  VIII.  c.  10,  the  greater  part  of  the 
land  in  England  was  conveyed  to  sundry 
persons  to  uses  ;  and  forasmuch  as  a  wife 
was  not  dowable  of  uses,  her  father  or 
friends  upon  her  marriage  procured  the 
husband  to  take  an  estate  from  his  feoffees, 
or  others  seised  to  his  use,  to  him  and  to 
his  wife  before  or  after  marriage,  for  their 
lives,  or  in  tail,  for  a  competent  provision 
for  the  wife  after  the  husband's  death." 
Vernon's  Case,  supra. 

The  effect  of  the  Statute  of  Uses,  which 
turned  these  equitable  into  legal  estates, 
would,  therefore,  have  been  to  give  to  all 
women  married  at  that  time  the  right  of 
dower  in  those  estates,  while  it  would  not, 


of  course,  defeat  their  right  in  any  lands 
that  had  been  thus  settled  upon  them  by 
way  of  jointure.  To  prevent  such  a  result 
the  6th  section  of  that  statute  provided 
that  "  Whereas  divers  persons  have  pur- 
chased or  have  estate  made  and  conveyed 
of  and  in  divers  lands,  tenements,  and 
hereditaments,  unto  them  and  to  their 
wives,  and  to  the  heirs  of  the  husband,  or 
to  the  husband  and  to  the  wife,  and  to  the 
heirs  of  their  two  bodies  begotten,  or  to 
the  heirs  of  one  of  their  bodies  begotten  ; 
or  to  the  husband  and  to  the  wife  for  term 
of  their  lives,  or  for  the  term  of  life  of  the 
said  wife ;  or  where  any  such  estate  or 
purchase  of  any  lands,  &c,  hath  been,  or 
hereafter  shall  be,  made  to  any  husband 
and  to  his  wife,  in  manner  and  form  above 
expressed,  or  to  any  other  person  or  per- 
sons, and  to  their  heirs  and  assigns,  to  the 
use  and  behoof  of  the  said  husband  and 
wife,  or  to  the  use  of  the  wife,  as  is  before 
rehearsed,  for  the  jointure  of  the  wife ; 
then,  and  in  every  such  case,  every  woman 
married  having  such  jointure  made,  or 
hereafter  to  be  made,  shall  not  claim  nor 
have  title  to  have  any  dower  of  the  residue 
of  the  lands,  &c,  that  at  any  time  were  her 
said  husband's  by  whom  she  hath  any 
such  jointure  ;  nor  shall  demand  nor  claim 
her  dower  of  and  against  them  that  have 
the  lands  and  inheritances  of  her  said  hus- 
band.    But  if  she  have  no  such  jointure, 


OF    THE    MUTUAL    RIGHTS    OF    HUSBAND   AND    WIFE. 


236 


With  regard  to  women  married  since  the  1st  of  January,  1834,  the 
doctrine  of  jointures  is  of  very  little  moment.  For  by  the  act  for  the 
amendment  of  the  law  relating  to  dower,(&)  the  dower  of  such  women 

(k)  3  &  4  Will.  IV.  c.  105.  Gavelkind  lands  are  within  the  act,  Farley  v.  Bonham 
2  John.  &  H.  177. 


then  she  shall  be  admitted  and  enabled  to 
pursue,  have,  and  demand  her  dower,  by 
writ  of  dower  after  the  due  eourse  and 
order  of  the  common  laws  of  the  realm." 

This  provision  fell,  of  course,  within  the 
common-law  rule  that  statutes  in  deroga- 
tion of  it  were  to  be  strictly  construed,  and 
six  requisites  were  held  necessary  in  order 
that  an  estate  limited  by  way  of  jointure 
should  be  a  bar  to  dower,  which,  as  has 
been  already  shown,  was  much  favored  by 
the  common  law.  First,  it  must  commence 
immediately  on  the  death  of  the  husband, 
else  it  would  not  be  so  beneficial  as  dower  ; 
second,  it  must  be  for  at  least  the  wife's 
life ;  third,  it  must  be  limited  to  herself, 
and  not  in  trust  for  her  ;  fourth,  it  must  be 
in  satisfaction  of  her  whole  dower,  and  not 
for  a  part  only  ;  fifth,  it  must  be  expressed 
or  averred,  or  by  necessary  implication  ap- 
pear to  be  so  made  in  satisfaction ;  and, 
sixth,  it  must  be  made  before  marriage. 
Co.  Litt.  36  b  ;  Vernon's  Case,  supra.  As 
to  the  third  of  these  requisites,  however, 
the  rigor  of  the  common  law  was  after- 
wards modified  by  equity,  which  considered 
that  a  trust  estate  was  equally  certain  and 
beneficial  as  a  legal  estate,  and  held  even 
an  agreement  to  settle  lands,  or  even  per- 
sonal estate  (though  the  statute  spoke  only 
of  lands),  as  a  jointure,  to  be  a  good  equi- 
table jointure,  and  a  bar  to  dower  :  Hervey 
v.  Hervey,  1  Atkins  563  ;  Drury  v.  Drury, 
5  Bro.  Pari.  Cas.  570 ;  Caruthers  v.  Ca- 
ruthers,  4  Brown's  Chan.  500  ;  Williams  v. 
Chitty,  3  Ves.  Jr.  545 ;  McCartee  v.  Teller, 
2  Paige  511;  Shaw  v.  Boyd,  5  Serg.  & 
Rawle  309  ;  and  this  whether  the  wife  were 
or  were  not  of  age  at  the  time  of  the  set- 
tlement, provided  it  received  the  assent  of 
her  parent  or  guardian,  or  were  in  other 
respects  free  from  legal  objection.  Drury 
v.  Drury;  McCartee  v.  Teller;  Corbit  v. 
Corbit,  1  Simon  &  Stuart  612. 


The  provision  of  the  statute  of  Henry 
VIII.  before  referred  to  has  been  adopted 
or  substantially  re-enacted  in  many  of  the 
United  States:  Kennedy  v.  Nedrow,  1  Dallas 
417;  Hastings  v.  Dickinson,  7  Mass.  155; 
Ambler  v.  Norton,  4  Hen.  and  Munf.  23. 
In  Rhode  Island,  Virginia,  Ohio,  Kentucky 
and  Missouri,  if  the  jointure  or  other  estate 
conveyed  in  lieu  of  dower  were  made 
while  the  woman  was  an  infant  or  after 
marriage,  she  may,  after  her  husband's 
death,  waive  it  and  claim  her  dower.  In 
Maine,  Massachusetts,  Indiana,  and  Arkan- 
sas, it  is  provided  that  no  jointure  will  bar 
the  dower,  unless  made  before  the  mar- 
riage and  with  the  consent  of  the  wife  ex- 
pressed in  the  deed,  and  such  are  sub- 
stantially the  provisions  in  Connecticut, 
Delaware,  and,  it  is  believed,  most  of  the 
United  States.  See  1  Greenleaf's  Cruise 
195,  200. 

Where,  however,  the  dower  has  not  been 
thus  barred  by  a  jointure,  or  forfeited  by 
misconduct,  it  of  course  attaches  as  a  right 
to  all  the  real  estate  of  the  husband  at  his 
death,  and  cannot  against  the  consent  of 
the  wife  be  defeated  or  affected  by  any 
provision  of  his  will.  But  where  that  will 
contains  a  provision  for  her  benefit,  and 
the  estate  of  which  she  is  dowable  is  de- 
vised to  others,  the  doctrine  of  election 
arises  ;  that  is  to  say,  in  certain  cases  the 
wife  must  elect  whether  she  will  claim  her 
dower  in  opposition  to  the  will,  or  accept 
its  provisions  in  place  of  it.  The  general 
principle  has  been  thus  clearly  stated  by 
the  late  Mr.  Wallace  :  "  As  a  dower  is  a 
legal  interest  vested  in  the  wife  by  the  act 
of  the  law,  paramount  to  the  will  of  the 
husband  and  beyond  his  control,  of  which 
matters  he  is  presumed  to  be  cognizant, 
and  as  every  devise  -or  bequest  imports  a 
bounty  and  does  not  naturally  imply  satis- 
faction  of  a  pre-existing  incumbrance,  a 


236 


OF    CORPOREAL    HEREDITAMENTS. 


has  been  placed  completely  within  the  power  of  their  husbands.  Under 
the  act  no  widow  is  entitled  to  dower  out  of  any  land  which  shall  have 
been  absolutely  disposed  of  by  her  husband  in  his  lifetime  or  by  his  will. (7) 
And  all  partial  estates  and  interest,  and  all  charges  created  by  any  dis- 
position or  will  of  the  husband,  and  all  debts,  incumbrances,  contracts, 
and  engagements  to  which  his  lands  may  be  liable,  shall  be  effectual  as 
against  the  right  of  his  widow  to  dower.(w)  The  husband  may  also 
either  wholly  or  partially  deprive  his  wife  of  her  right  to  dower  by  any 
declaration  for  that  purpose  made  by  him,  by  any  deed,  or  by  his  will.(w) 
As  some  small  compensation  for  these  sacrifices,  the  act  has  granted  a 
right  of  dower  out  of  lands  to  which  the  husband  had  a  right  merely 
without  *having  had  even  a  legal  seisin  ;(o)  dower  is  also  ex - 
L  *"  ^  tended  to  equitable  as  well  as  legal  estates  of  inheritance  in  pos- 
session, excepting  of  course  estates  in  joint  tenancy. (p)  The  effect  of 
the  act  is  evidently  to  deprive  the  wife  of  her  dower,  except  as  against 
her  husband's  heir  at  law.  If  the  husband  should  die  intestate,  and  pos- 
sessed  of  any  lands,  the  wife's  dower  out  of  such  lands  is  still  left  her 

(/)  3  &  4  Will.  IV.  c.  105.  s.  4.  In  the  recent  case  of  Rowland  v.  Cutbbertson,  M.  R., 
Law  Rep.,  8  Eq.  466,  the  late  Lord  Romilly  expressed  an  opinion  that  a  mere  general 
devise  of  lands  was  insufficient  to  bar  the  dower  of  the  testator's  widow  in  any  of  his 
lands  included  in  such  devise.  But  the  contrary  has  since  been  decided.  Lacey  v. 
Bill,  M.  It.,  Law  Rep.,  19  Eq.  346;  23  W.  R.  285. 

(/«)  Sect.  5  ;  Jones  v.  Jones,  4  Kay  &  J.  361. 

(«)  Sects.  6,  7,  8.     See  Fry  v.  Noble,  20  Beav.  598;   7  De  Gex,  M.  &  G.  687. 

(o)  Sect.  3 

I  p)  Sect.  2  ;  Fry  v.  Noble,  20  Beav.  598  ;  Clarke  v.  Franklin,  4  Kay  &  J.  266. 


gift  to  the  wife  in  the  will  is  to  be  taken 
as  a  cumulative  provision,  unless  the  intent 
that  it  shall  be  in  lieu  and  exclusion  of 
dower  be  demonstrated  by  express  decla- 
ration, or  by  clear  and  manifest  implica- 
tion arising  from  the  instrument's  contain- 
ing some  provision  incompatible  with  the 
right  of  dower.  To  establish  such  implied 
intention,  the  claim  of  dower  must  be 
inconsistent  with  the  will,  and  repugnant 
to  its  dispositions,  or  some  of  them.  It 
must,  in  fact,  disturb  or  disappoint  the  will. 
It  is  not  enough  that  the  matter  is  doubt- 
ful, or  that  the  testator  did  not  contemplate 
that  his  wife  should  take  both  estates  :  she 
will  not  be  put  to  an  election,  unless  it  be 
clear  that  he  distinctly  contemplated  and 
designed  that  she  should  not  enjoy  both 
provisions,  or  unless  he  has  made  such  a 


disposition  of  his  estate  that  the  assertion 
of  dower  would  do  violence  to  his  will." 
Note  to  Streatfield  v.  Streatfield,  1  Lead. 
Cas.  in  Eq.  480  (3d  Am.  ed. ;  4th  ed.  541). 
Statutory  provisions,  however,  which  are 
there  referred  to,  have  regulated  this  sub- 
ject in  many  of  the  States.  Thus  in  Dela- 
ware any  devise,  and  in  Pennsylvania  any 
bequest  or  devise,  will  be  taken  to  be  in  lieu 
of  dower,  unless  the  testator  declare  other- 
wise, the  widow  still  having  her  election  ; 
in  New  York,  New  Jersey,  North  Carolina, 
and  Tennessee,  any  testamentary  provision 
defeats  the  dower  unless  within  a  certain 
time  the  widow  dissents,  as  also  in  Massa- 
chusetts, Ohio,  and  Alabama,  unless  it 
plainly  appear  by  the  will  that  the  testator 
intended  she  should  have  both.  R. 


OF   THE    MUTUAL    RIGHTS    OF    HUSBAND    AND    WIFE.  237 

for  her  support,— unless,  indeed,  the  husband  should  have  executed  a 
declaration  to  the  contrary.  A  declaration  of  this  kind  has,  unfortu- 
nately, found  its  way,  as  a  sort  of  common  form,  into  many  purchase- 
deeds.'  Its  insertion  seems  to  have  arisen  from  a  remembrance  of  the 
troublesome  nature  of  dower  under  the  old  law,  united  possibly  with 
some  misapprehension  of  the  effect  of  the  new  enactment.  But,  surely, 
if  the  estate  be  allowed  to  descend,  the  claim  of  the  wife  is  at  least  equal 
to  that  of  the  heir,  supposing  him  a  descendant  of  the  husband  ;  and  far 
superior,  if  the  heir  be  a  lineal  ancestor  or  remote  relation. (q)  The 
proper  method  seems,  therefore,  to  be  to  omit  any  such  declaration 
against  dower,  and  so  to  leave  to  the  widow  a  prospect  of  sharing  in  the 
lands,  in  case  her  lord  shall  not  think  proper  to  dispose  of  them. 

The  act  to  facilitate  leases  and  sales  of  settled  estates  now  empowers 
every  person  entitled  to  the  possession  or  receipt  of  the  rents  and  profits 
of  any  unsettled  estate  as  tenant  in  dower  to  grant  leases  not  exceeding 
twenty-one  years,  in  the  same  manner  as  a  tenant  by  the  curtesy,  or  a 
tenant  for  life  under  a  settlement  made  after  that  act  came  in  force.(r) 

*An  action  for  dower,  like  other  real  actions,  was  formerly  p^gg-, 
commenced  in  the  Court  of  Common  Pleas;  and  when  real 
actions  were  abolished  in  the  year  1833,(«)  writs  for  the  recovery  of 
dower  were  excepted.  By  an  act  of  1860  these  writs  were  abolished,(«) 
and  the  action  was  commenced  by  writ  of  summons  issuing  out  of  the 
Court  of  Common  Pleas,  in  the  same  manner  as  the  writ  of  summons  in 
an  ordinary  action  ;  and  the  proceedings  were  the  same  as  in  ordinary 
actions  commenced  by  writ  of  summons.(w)  A  widow's  dower  might 
also  have  been  recovered  by  bill  in  equity. {x)  And  now  by  the  Judicature 
Act,  1873,(3/)  the  jurisdiction  of  the  Courts  of  Common  Pleas  and  Chan- 
cery has  been  transferred  respectively  to  the  Common  Pleas  and  Chan- 
cery Divisions  of  the  High  Court  of  Justice. 

(q)  Sudg.  Vend.  &  Pur.  545,  11th  ed.  • 

(r)  Stat.  19  &  20  Vict.  c.  120,  s.  32.    See  ante,  pp.  26,  229 ;  40  &  41  Vict.  c.  18,  which 
repeals  and  re-enacts  with  amendments  stat.  19  &  20  Vict.  c.  120. 

(«)  By  Stat.  3  &  4  Will.  IV.  c.  27,  s.  36.  (0  Stat.  23  &  24  Vict.  c.  126,  s.  26. 

(u)  Sect.  27. 

(x)  See  Anderson  v.  Pignet,  L.  R.  11  Eq.  329,  reversed  on  appeal,  L.  R.  8  Ch.  180, 
21  W.  R.  150,  and  the  cases  there  cited. 
(y)  Stat.  36  &  37  Vict.  c.  66. 

15 


[*239]  *PART   II. 

OF    INCORPOREAL    HEREDITAMENTS. 

OfR  attention  has  hitherto  been  directed  to  real  property  of  a  cor- 
poreal kind.  We  have  considered  the  usual  estates  which  may  be  held 
in  such  property, — the  mode  of  descent  of  such  estates  as  are  inherit- 
able— the  tenure  by  which  estates  in  fee  simple  are  holden,— and  the 
usual  method  of  the  alienation  of  such  estates,  whether  in  the  lifetime  of 
the  owner  or  by  his  will.  We  have  also  noticed  the  modification  in  the 
right  and  manner  of  alienation  produced  by  the  relation  of  husband  and 
wife.  Besides  corporeal  property,  we  have  seen(a)  that  there  exists  also 
another  kind  of  property,  which,  not  being  of  a  visible  and  tangible 
nature,  is  denominated  incorporeal.  This  kind  of  property,  though  it 
may  accompany  that  which  is  corporeal,  yet  does  not  in  itself  admit  of 
actual  delivery.  When,  therefore,  it  was  required  to  be  transferred  as  a 
separate  subject  of  property,  it  was  always  conveyed,  in  ancient  times, 
by  writing,  that  is,  by  deed ;  for  we  have  seen(6)  that  formerly  all  legal 
writings  were  in  fact  deeds.  Property  of  an  incorporeal  kind  was,  there- 
fore, said  to  lie  in  grant,  whilst  corporeal  property  was  said  to  lie  in 
livery.{c)  For  the  word  grant,  though  it  comprehends  all  kinds  of  con- 
veyances, yet  more  strictly  and  properly  taken,  is  a  conveyance  by  deed 
only.(d)  And  livery,  as  we  have  seen,(e)  is  the  technical  name  for  that 
r*9lfn  delivery  which  was  made  of  the  seisin,  or  feudal  possession,  *on 
every  feoffment  of  lands  and  houses,  or  corporeal  hereditaments. 
In  this  difference  in  the  ancient  mode  of  transfer  accordingly  lay  the 
chief  distinction  between  these  two  classes  of  property.  But,  as  we  have 
seen,(/)  the  act  to  amend  the  law  of  real  property  now  provides  that  all 
corporeal  tenements  and  hereditaments  shall,  as  regards  the  conveyance 
of  the  immediate  freehold  thereof,  be  deemed  to  lie  in  grant  as  well  as  in 
livery. (g)  There  is,  accordingly,  now  no  practical  difference  in  this 
respect  between  the  two  classes ;  and  the  lease  for  a  year  stamp,  to 
which  a  grant  of  corporeal  hereditaments  had  been  previously  subject, 
was  abolished  by  the  Stamp  Act  of  1850. (h) 

(a)  Ante,  p.  10.  (b)  Ante,  p.  147. 

(c)  Co.  Litt.  9  a.  (d)  Shep.  Touch.  228. 

(e)  Ante,  p.  142.  (/)  Ante,  p.  181. 

\g)  Stat.  8  &  9  Vict.  c.  106,  s.  2.  (h)  Stat.  13  &  14  Vict.  c.  97. 


♦CHAPTER  I.  [*241] 

OF   A  REVERSION   AND    A   VESTED    REMAINDER. 

The  first  kind  of  incorporeal  hereditament  which  we  shall  mention  is 
somewhat  of  a  mixed  nature,  being  at  one  time  incorporeal,  at  another 
not ;  and,  for  this  reason,  it  is  not  usually  classed  with  those  heredita- 
ments which  are  essentially  and  entirely  of  an  incorporeal  kind.  But 
as  this  hereditament  partakes,  during  its  existence,  very  strongly  of  the 
nature  and  attributes  of  other  incorporeal  hereditaments,  particularly  in 
its  always  permitting,  and  generally  requiring,  a  deed  of  grant  for  its 
transfer,  it  is  here  classed  with  such  hereditaments.  It  is  called,  accord- 
in  2  to  the  mode  of  its  creation,  a  reversion  or  a  vested  remainder. 

If  a  tenant  in  fee  simple  should  grant  to  another  person  a  lease  for  a 
term  of  years,  or  for  life,  or  even  if  he  should  grant  an  estate  tail,  it  is 
evident  that  he  will  not  thereby  dispose  of  all  his  interest;  for  in  each 
case,  his  grantee  has  a  less  estate  than  himself.  Accordingly,  on  the 
expiration  of  the  term  of  years,  or  on  the  decease  of  the  tenant  for  life, 
or  on  the  decease  of  the  donee  in  tail  without  having  barred  his  estate 
tail  and  without  issue,  the  remaining  interest  of  the  tenant  in  fee 
will  revert  to  himself  or  his  heirs,  and  he  or  his  heir  will  again 
become  tenant  in  fee  simple  in  possession.  The  smaller  estate  which 
he  has  so  granted  is  called,  during  its  continuance,  the  particular 
estate,  being  only  a  part,  or  particula,  of  the  estate  in  fee. (a)  And 
during  *the  continuance  of  such  particular  estate,  the  interest  r*242~| 
of  the  tenant  in  fee  simple,  which  still  remains  undisposed  of — 
that  is,  his  present  estate,  in  virtue  of  which  he  is  to  have  again  the  pos- 
session at  some  future  time — is  called  his  reversion.ib) 

If  at  the  same  time  with  the  grant  of  the  particular  estate  he 
should  also  dispose  of  this  remaining  interest  or  reversion,  or  any 
part  thereof,  to  some  other  person,  it  then  changes  its  name,  and  is 
termed,  not  a  reversion,  but  a  remainder. (c)  Thus,  if  a  grant  be  made 
by  A.,  a  tenant  in  fee  simple,  to  B.  for  life,  and  after  his  decease  to  C. 
and  his  heirs,  the  whole  fee  simple  of  A.  will  be  disposed  of,  and  C.'s 
interest  will  be  termed  a  remainder,  expectant  on  the  decease  of  B.     A 

(a)  2  Black.  Com.  165.  (6)  Co.  Litt.  22  b,  142  b. 

(c)  Litt.  ss.  215,  217. 


242  OF    INCORPOREAL   HEREDITAMENTS. 

remainder,  therefore,  always  has  its  origin  in  express  grant ;  a  reversion 
m'erely  arises  incidentally,  in  consequence  of  the  grant  of  the  particular 
estate.  It  is  created  simply  by  the  law,  whilst  a  remainder  springs  from 
the  act  of  the  parties. (d) 

1.  And,  first,  of  a  reversion.  If  the  tenant  in  fee  simple  should  have 
made  a  lease  merely  for  a  term  of  years,  his  reversion  is  looked  on,  in 
Jaw,  precisely  as  a  continuance  of  his  old  estate,  with  respect  to  himself 
and  his  heirs,  and  to  all  other  persons  but  the  tenant  for  years.  The 
owner  of  the  fee  simple  is  regarded  as  having  simply  placed  a  bailiff  on 
his  property  ;(e)1  and  the  consequence  is  that,  subject  to  the  lease,  the 
owner's  rights  of  alienation  remain  unimpaired,  and  may  be  exercised  in 
the  same  manner  as  before.  The  feudal  possession  or  seisin  has  not  been 
parted  with.  And  a  conveyance  of  the  reversion  may,  therefore,  be 
r*94.qi  made  by  *a  feoffment,  with  livery  of  seisin  made  with  the  con- 
sent of  the  tenant  for  years. (ff  But,  if  this  mode  of  transfer 
should  not  be  thought  eligible,  a  grant  by  deed  will  be  equally  effica- 
cious. For  the  estate  of  the  grantor  is  strictly  incorporeal,  the  tenant 
for  years  having  the  actual  possession  of  the  lands :  so  long,  therefore, 
as  such  actual  possession  continues,  the  estate  in  fee  simple  is  strictly  an 
incorporeal  reversion,  which,  together  with  the  seisin  or  feudal  posses- 
sion, may  be  conveyed  by  deed  of  grant. (g)  But,  if  the  tenant  in  fee 
simple  should  have  made  a  lease  for  life,  he  must  have  parted  with  his 
seisin  to  the  tenant  for  life ;  for,  an  estate  for  life  is  an  estate  of  free- 
hold, and  such  tenant  for  life  will,  therefore,  during  his  life,  continue  to 
be  the  freeholder,  or  holder  of  the  feudal  seisin. (A)  No  feoffment  can 
consequently  be  made  by  the  tenant  in  fee  simple  ;  for  he  has  no  seisin 
of  which  to  make  livery.  His  reversion  is  but  a  fragment  of  his  old 
estate,  and  remains  purely  incorporeal,  until,  by  the  dropping  of  the  life 
of  the  grantee,  it  shall  again  become  an  estate  in  possession.  Till  then, 
that  is,  so  long  as  it  remains  a  reversion  expectant  on  an  estate  of  free- 
hold, it  can  only  be  conveyed,  like  all  other  incorporeal  hereditaments, 
when  apart  from  what  is  corporeal,  by  a  deed  of  grant.(^) 

(d)  2  Black.  Cora.  163.  (e)  Watk.  Descents  108  (113,  4th  ed.). 

(/)~Co.  Litt.  48  b,  n.  (8). 

(ff)  Perkins,  s.  221 ;  Doe  d.  Were  v.  Cole,  7  Barn.  &  Cress.  243,  248  (E.  C.  L.  R.  vol. 
14) ;  ante,  p.  180. 
(h)  Watk.  Descents  109  (114,  4th  ed.)  ;  ante,  p.  141. 
(i)  Shep.  Touch.  230. 

1  See  supra,  p.  8  et  seq.  given    unless    the    feoffor    had  the  actual 

'2  Because  livery  of  seisin  could  not  be     possession.  M. 


OF   A    REVERSION    AND    A    VESTED    REMAINDER.  243 

We  have  before  mentioned(&)  that,  in  the  case  of  a  lease  for  life  or 
years,  a  tenure  is  created  between  the  parties,  the  lessee  becoming  ten- 
ant   to  the  lessor.     To  this  tenure   are  usually  incident  two    things, 
fealty(T)  and  rent.     The  oath  of  fealty  is  now  never  exacted ;  but  the 
rent,  which  may  be  reserved,  is  of  practical  importance.     This    r*244] 
rent  is  called   in  law  rent  service,(m)  in  order  to  distinguish  it 
from  other  kinds  of  rent,  to  be  spoken  of  hereafter,  which  have  nothing 
to  do  with  the  services   anciently  rendered  by  a  tenant  to  his  lord.     It 
consists,    usually,    but   not    necessarily,    of    money;    for,    it    may   be 
rendered  in  corn,  or  in  anything  else.1     Thus,  an  annual  rent  of  one 
peppercorn  is  sometimes  reserved  to  be  paid,  when  demanded,  in  cases 
where  it  is  wished  that  lands  should  be  holden  rent  free,  and  yet  that  the 
landlord    should  be   able   at    any   time   to   obtain   from    his  tenant   an 
acknowledgment  of  his  tenancy.     To  the  reservation  of  a  rent  service,  a 
deed  was  formerly  not  absolutely  necessary.(w)     For,  although  the  rent 
is  an  incorporeal  hereditament,  yet  the  law  considered  that  the  same 
ceremony,  by  which  the  nature  and  duration  of  the  estate  were  fixed  and 
evidenced,  was  sufficient  also  to  ascertain  the  rent  to  be  paid  for  it.    But, 
by  the  act  to  amend  the  law  of  real  property,(o)  it  is  provided  that  a 
lease,  required   by  law  to  be  in  writing,  of  any  tenements  or  heredita- 
ments   shall    be  void    at  law,  unless  made   by   deed.     In  every  case, 
therefore,  where  the  Statute  of  Frauds(^)  has  required  leases  to  be  in 
writing,  they   must  now    be   made   by   deed.      But,   according  to    the 
exception  in  that  statute,(g)  where  the  lease  does  not  exceed  three  years 
from   the  making,  a  rent  of  two-thirds  of  the  full  improved  value,  or 
more,   may   still  be   reserved    by  parol   merely.2     Rent  service,   when 

(k)  Ante,  p.  117.  (J)  Ante,  pp.  124,  125. 

(m)  Co.  Litt.  142  a.  (n)  Litt   s.  214;  Co.  Litt.  143  a. 

(o)  Stat.  8  &  9  Vict.  c.  106,  s.  3,  repealing  stat.  7  &  8  Vict.  c.  76,  s.  4,  to  the  same 
effect. 

(p)  Stat.  29  Car.  II.  c.  3,  ante,  p.  151.         (?)  Sect.  2. 


i  "Nothing  is  more  common  in  Amer-  vantage  of  a  prosperous  harvest,  and  the 

ica,"  says  Mr.  Morris,   in   his    edition   of  tenant   escapes  the   heavy  loss  which    a 

Smith's    Law    of   Landlord    and    Tenant,  year  of  scarcity  might  entail  upon  him. 

"than  to  make  the  rent  a  certain  portion  This  is  commonly  called  letting  the  land 

of  the  annual  produce  of  the  farm,  as,  for  on   shares,    a    form    of  expression    which 

instance,   one-half  the   grain,   to    be    de-  seems  to  be  sufficiently  accurate  and  quite 

livered  in  the  bushel,   and    one-half  the  apt  for  the  expression  of  the  idea  intended 

hay   and   straw,  &c.     And  it   has  always  to  be  conveyed."— Note  to  p.  91.           R. 

been  held  that  these  are  good  reservations  2  And  this  provision  of  the   Statute  of 

of   rent,  in  kind,  and    that   they  may  be  Frauds,  together  with   its   exception,  has 

distrained  for.     It  is  considered  the  fairest  been  re-enacted  in  nearly  all  of  the  United 

mode  of  letting,  as  well  for  the  landlord  States.                                                        R- 
as  the  tenant.     The  landlord  has  the  ad- 


244  OF   INCORPOREAL   HEREDITAMENTS. 

created,  is  considered  to  be  issuing  out  of  every  part  of  the  land  in 
respect  of  which  it  is  paid  :(r)  one  part  of  the  land  is  as  much  subject  to 
it  as  another.1  For  the  recovery  of  rent  service,  the  well-known  remedy 
is  by  distress  and  sale  of  the  goods  of  the  tenant,  or  any  *other 
L  "  J  person,  found  on  any  part  of  the  premises.  This  remedy  for  the 
recovery  of  rent  service  belongs  to  the  landlord  of  common  right,  with- 
out any  express  agreement. (s)  In  modern  times  it  has  been  extended 
and  facilitated  by  various  acts  of  parliament.(^)2 

In  addition  to  the  remedy  by  distress,  there  is  usually  contained  in 
leases  a  condition  of  re-entry,  empowering  the  landlord,  in  default  of 
payment  of  the  rent  for  a  certain  time,  to  re-enter  on  the  premises  and 
hold  them  as  of  his  former  estate.  When  such  a  condition  is  inserted, 
the  estate  of  the  tenant,  whether  for  life  or  years,  becomes  determinable 
on  such  re-entry.  In  former  times,  before  any  entry  could  be  made 
under  a  proviso  or  condition  for  re-entry  on  non-payment  of  rent,  the 
landlord  was  required  to  make  a  demand,  upon  the  premises,  of  the 
precise  rent  due,  at  a  convenient  time  before  sunset  of  the  last  day  when 
the  rent  could  be  paid  according  to  the  condition  ;  thus,  if  the  proviso 
were  for  re-entry  on  non-payment  of  the  rent  by  the  space  of  thirty  days, 

(r)  Co.  Litt.  47  a;   142  a. 

(s)  Litt.  ss.  213,  214.  It  must  be  made  between  sunrise  and  sunset.  Tutton  v. 
Darke,  5  H.  &  N.  647. 

(t)  Stat.  2  Wm.  &  Mary,  c.  5  ;  8  Anne,  c.  14 ;  4  Geo.  II.  c.  28  ;  and  11  Geo.  II.  c.  19  ; 
Co.  Litt.  47  b,  n.  (7)  ;  stat.  3  &  4  Will.  IV.  c.  42,  ss.  37,  38  ;  14  &  15  Vict.  c.  25,  s.  2  ; 
see  also  stat.  34  &  35  Vict.  c.  79,  passed  for  the  protection  of  the  goods  of  lodgers,  and 
stat.  35  &  36  Vict.  c.  50,  for  the  protection  of  railway  rolling  stock. 


1  A  rent  service,  unlike  a  rent  charge,  estate  in  fee  simple,  it  was  contended  that 
is  apportionable,  that  is  to  say,  a  release  the  law  was  the  same  in  Pennsylvania, 
of  part  of  the  land  from  the  rent  does  not  and  that  the  rent  in  question  was  a  rent 
operate  to  free  the  whole,  which  is  the  charge,  and  consequently  that,  by  the  re- 
effect  of  a  release  in  the  case  of  a  rent  lease  of  a  part,  the  whole  land  was  dis- 
charge, as  to  which,  see  infra,  p.  337,  charged  from  the  rent ;  but  it  was  held  by 
et  seq.  It  was  this  distinction  which  gave  the  court  that  such  a  rent  was,  in  all  re- 
rise  to  the  case  of  Ingersoll  v.  Sergeant,  spects,  a  rent  service,  and  that  by  reason 
1  Wharton  337,  in  which  an  estate  in  fee  of  the  terms  of  the  charter  to  William 
simple  had  been  granted,  reserving  a  per-  Penn,  the  statute  of  Quia  emptores  had 
petual  rent,  from  which  the  owner  of  the  never  been  in  force  in  that  province.  R. 
rent  subsequently  released  a  portion  of  2  The  student  will  find  all  these  statutes 
the  land.  It  being  admitted  that  in  Eng-  succinctly  referred  to  and  explained,  as 
land,  since  the  statute  of  Quia  emptores,  also  those  in  force  on  this  side  of  the  At- 
which  prohibited  subinfeudation,  a  rent  lantic,  in  Mr.  Morris's  edition  of  Smith's 
service  could  not  be  reserved  out  of  an  Landlord  and  Tenant,  p.  146,  et  seq.     R. 


OF 


A    REVERSION    AND    A   VESTED    REMAINDER. 


245 


the  demand  must  have  been  made  on  the  evening  of  the  thirtieth  day.(w)1 
But  now,  if  half  a  year's  rent  is  due,  and  no  sufficient  distress  is  found 

(u)  1  Wms.  Saund.  287,  n.  (16) ;  Acocks  v.  Phillips,  5  H.  &  N.  183.        


i  The  demand  must  also  be  made  in  the 
most  public  part  of  the  premises,  and  these 
forms  must  all  be  observed,  even  if  there 
be  no  person  on  the  land  to  pay.     These 
provisions  of  the  common  law  are  recog- 
nized and  enforced  on  this  side  of  the  At- 
lantic :    Sperry  v.  Sperry,  8  New  Hamps. 
477;   Connor  v.  Bradley,  1  Howard's  S.  C. 
R.  211 ;  Mackubin  v.  Wetcroft,  4  Harris  & 
M'Henry  135;  Garret  v.  Scouten,  3  Denio 
334;  M'Cormick  v.  McConnell,  6  Serg.  & 
Rawle   151.     In   order  that    the    re-entry 
should  not  be  liable  to  be  defeated  by  the 
absence    or   failure  of  proof  that  it  was 
legally  made,  it  is  proper  that  the  evi- 
dence that  the  above  requisites  were  duly 
complied  with   should   be   collected   and 
preserved,  which   is   done   by  taking  the 
depositions  of  witnesses  upon  bill  in  equity 
filed  "  to  perpetuate  testimony,"  of  which 
the  student  will  see  the  form  in  Brightly 
Eq.  Jur.  675. 

If  the    landlord,   however,  accept   rent 
which  becomes  due  after  the  breach  of  the 
condition,  he  waives  his  right  to  the  for- 
feiture of  the  estate,  because  he  thereby 
affirms  the  lease  to  have  a  continuance : 
Co.  Litt.  211  b.    But  while,  by  the  common 
law,  one  could  thus  regain  the  possession 
of  an  estate  for  the  omission  to  make  a 
payment  of  money  at  a  certain  time,  equity 
"  regarded  the  condition  as  intended  to 
enforce  the  performance  of  the  contract, 
and  held  that  if  this  end  were  substantially 
attained,  there  could   be  no  right  to  use 
the  means  for  a  collateral  or  ulterior  object, 
highly  disadvantageous  to  the  other  party 
to  the  agreement.      Bethlehem  v.  Annis, 
40  N.  H.  34.    Whenever,  therefore,  the  in- 
jury occasioned  by  the  breach  of  a  con- 
dition admits  of  admeasurement  and  com- 
pensation, the  injured  party  will  be  com- 
pelled to  accept  an  equivalent  for  his  loss, 
and    restrained    from    exacting   anything 
further:  Skinner  v.  Dayton,  2  Johns.  Ch. 
526,  535  ;  Beatey  v.  Harkey,  2  S.  &  M.  563 ; 


3  Leading  Cases  in  Equity  658-660,  3d  Am. 
ed.  (4th  ed.  vol.  2,  p.  2044).  This,  however, 
can  only  be  done  when  the  failure  to  per- 
form the  contract,  at  the  time  and  in  the 
manner  prescribed  by  its  terms,  can  be 
made    good    subsequently :    Duukley    v. 
Adams,  20  Vermont  415 ;  Baxter  v.  Lansing, 
7  Paige  350  ;  for  it  would  be  obviously  un- 
just to  deprive  the  party  entitled  to  enforce 
the  condition  of  his  remedy  at  law  without 
affording  him  adequate  redress  in  equity. 
But  when  the  breach  consists   simply  in 
the   non-payment  of  money  at  the   time 
when  it  is  due,  and  the  injury  is  limited 
to  delay,  interest  is  held  to  be  a  sufficient 
compensation,   and    equity   will    interfere 
by  injunction  on  the  payment  of  principal 
and  interest:  Atkins  v.  Chilson,  11  Mete. 
112  ;  Sanborn  v.  Woodman,  5  Cushing  36. 
Although  these   principles  originated   in 
chancery,   they    are    now    very    generally 
adopted  by  courts  of  law,  under  the  ex- 
press   or    implied    authority    of    different 
statutory   enactments,    beginning    as    far 
back  as  the  statutes  8  &  9  William  III.  c. 
11,  sect.  8,  and  4  Anne,  c.  16,  sect.  12,  13, 
which  limited  the  right  to  recover,  on  a 
bond,  to  the  actual  damage  sustained  by 
the  obligee,  and  made  a  payment  of  prin- 
cipal and  interest  an  answer  to  an  action 
brought  for  the  penalty,  and  coming  down 
to  the  4   Geo.  II.  c.  28,  sect.  4,  which  en- 
titled the  tenant  to  relief  in  an  ejectment 
founded  on  the  breach  of  a  condition  for 
the  non-payment  of  rent,  on  the  payment 
into  court  of  principal,  interest,  and  costs. 
Even  before  the  passage  of  the  last-men- 
tioned   statute,    the    courts,    though    still 
holding  that  as  a  subsequent  payment  is 
not  a  performance  of  the  condition,  it  can 
be  no  answer  to  prior  breach  in  point  of 
strict  principle  (Sheppard's   Touchstone, 
Condition  134,  143;  Green's  Case,  Croke 
Eliz.  1,  1  Leonard.  262,  3  Salk.  3),  held, 
notwithstanding,  that  if  the  question  arose 
in  action  of  ejectment  (where  the  plaintiff 


245  OF   INCORPOREAL    HEREDITAMENTS. 

on  the  premises,  the  landlord  may  recover  the  premises,  at  the  expira- 
tion of  the  period  limited  by  the  proviso  for  re-entry,(:c)  by  action  of 
ejectment,  without  any  formal  demand  or  entry  ;{y)  *but  all 
*-  J  proceedings  are  to  cease  on  payment  by  the  tenant  of  all  arrears 
and  costs,  at  any  time  before  the  trial. (2)  Formerly  also  the  tenant 
might,  at  an  indefinite  time  after  he  was  ejected,  have  filed  his  bill  in  the 
Court  of  Chancery,  and  he  would  have  been  relieved  by  that  court  from 
the  forfeiture  he  had  incurred,  on  his  payment  to  his  landlord  of  all 
arrears  and  costs.  But  by  a  statute  of  the  present  reign,  the  right  of 
the  tenant  to  apply  for  relief  in  equity  was  restricted  to  six  calendar 
months  next  after  the  execution  of  the  judgment  on  the  ejectment  ;(a)  and 
by  a  more  recent  statute,  the  same  relief  was  allowed  to  be  given  by  the 
courts  of  law.(6)  In  ancient  times,  also,  the  benefit  of  a  condition  of 
re-entry  could  belong  only  to  the  landlord  and  his  heirs ;  for  the  law 
would  not  allow  of  the  transfer  of  a  mere  conditional  right  to  put  an  end 
to  the  estate  of  another.(c)  A  right  of  re-entry  was  considered  in  the 
same  light  as  a  right  to  bring  an  action  for  money  due  ;  which  right  in 
ancient  times  was  not  assignable.1  This  doctrine  sometimes  occasioned 
considerable  inconvenience ;  and  in  the  reign  of  Henry  VIII.  it  was 
found  to  press  hardly  on  the  grantees  from  the  crown  of  the  lands  of 
the  dissolved  monasteries.  For  these  grantees  were  of  course  unable  to 
take  advantage  of  the  conditions  of  re-entry,  which  the  monks  had  in- 
serted in  the  leases  of  their  tenants.  A  parliamentary  remedy  was, 
therefore,  applied  for  the  benefit  of  the  favorites  of  the  crown  ;  and  the 
opportunity  was  taken  for  making  the  same  provision  for  the  public  at 
r*9471  ^arSe*  A  statute  was  accordingly  passed,(c/)  which  *enacts  that 
J    as  well  the  grantees  of  the  crown   as   all  other  persons  being 

(x)  Doe  d.  Dixon  v.  Roe,  7  C.  B.  134  (E.  C.  L.  R.  vol.  62). 
(y)  Stat.  15  &  16  Vict.  c.  76,  s.  210,  re-enacting  stat.  4  Geo.  II.  c.  28,  s.  2. 
(z)  Stat.  15  &  16  Vict.  c.  76,  s.  212,  re-enacting  stat.  4  Geo.  II.  c.  28,  s.  4.     An  under- 
tenant has  the  same  privilege,  Doe  d.  Wyatt  v.  Byron,  1  C.  B.  623  (E.  C.  L.  R.  vol.  50). 

(a)  Stat.  15  &  16  Vict.  c.  76,  s.  210,  re-enacting  stat.  4  Geo.  II.  c.  28,  s.  2  ;  Bowser 
v.  Colby,  1  Hare  109. 

(b)  Stat.  23  &  24  Vict   c.  126,  s.  1. 

(c)  Litt.  ss.  347,  348  ;  Co.  Litt.  265  a,  n.  (1). 

(d)  Stat.  32  Hen.  VIII.  c.  34:  Co.  Litt.  215  a;  Isherwood  v.  Oldknow,   3  Mau.  & 
Selw.  382,  394. 


could  only  proceed  through  the  help  of  Hare's  note  to  Dumpor's  Case,  1  Smith's 

the   court,    and    by  the    aid    of  a   fiction  Leading  Cases.  R. 

devised  for  his  benefit),  ihey  would    put         l  The  student  will  find  all  the  law  upon 

him  to  terms,  and  compel   a   relinquish-  this  subject   carefully  analyzed  in   Judge 

ment  of  the  forfeiture,  on  the  payment  of  Hare's  note  to  Dumpors  Case,  1  Smith's 

the    arrears,    with    costs     and     interest.  Leading  Cases.  R. 

Downes  v.  Turner,  2  Salk.  597." — Judge 


OF    A    REVERSION    AND    A    VESTED    REMAINDER. 


247 


grantees(e)  or  assignees,  their  heirs,  executors,  successors,  and  assigns, 
shall  have  the  like  advantages  against  the  lessees,  by  entry  for  non- 
payment of  rent,  or  for  doing  of  waste,  or  other  forfeiture  as  the  lessors 
or  grantors  themselves,  or  their  heirs  or  successors  might  at  any  time 
have  had  or  enjoyed;  and  this  statute  is  still  in  force.  There  exist 
also  further  means  for  the  recovery  of  rent,  in  certain  actions  at  .aw, 
which  the  landlord  may  bring  against  his  tenant  for  obtaining  payment. 

Rent  service,  being  incident  to  the  reversion,  passes  by  a  grant  of  such 
reversion  without  the  necessity  of  any  express  mention  of  the  rent.(/ 
Formerly  no  grant  could  be  made  of  any  reversion  without  the  consent 
of  the  tenant,  expressed  by  what  was  called  his  attornment ;  to  his  new 
landlord.^)  It  was  thought  reasonable  that  a  tenant  should  not  have  a 
new  landlord  imposed  upon  him  without  his  consent;  for,  in  early  times, 
the  relation  of  lord  and  tenant  was  of  a  much  more  personal  nature  than 

(.)  A  lessee  of  the  reversion  is  within  the  act :  Wright  v.  Burroughes,  3  C.  B.  685  (E. 
C.  L.  R.  vol.  54). 

(/•)  Litt.  ss.  228,  229,  572  ;  Perk.  s.  113. 

(g)  Litt.  ss.  551,  567,  568,  569  ;  Co.  Litt.  309  a,  note  (1). 


1  This  statute  is  in  force  in  Pennsyl- 
vania, and  it  is  believed  in  many  of  our 
States.  Report  of  the  Judges,  3  Binney ; 
Plumleigh  v.  Cook,  13  Illinois  669.      R. 

2  In   this    connection   may    properly  be 
noticed  the  rule  which  prohibits  the  ten- 
ant from  denying  the  title  of  the  landlord 
in  any  proceeding  instituted  by  him  either 
for  the  recovery  of  rent  or  of  the  posses- 
sion of  the  demised  premises.     The   rule 
itself  has  often  been  supposed  to  have  been 
feudal  in  its  origin,  but  a  reference  to  the 
58th  section  of  Littleton,  where  he  says, 
"  it  is  a  good   plea  for  the  lessee  to  say 
that  the  lessor  had  nothing  in  the  tene- 
ments at  the  time  of  the  lease  ;"  and  Coke's 
commentary  upon  it,  Co.  Litt.  47  b,  "  that 
if  the  lessor  have  nothing  in  the  land,  the 
lessee  hath  not  quid  pro  quo,  nor  anything 
for  which  he  should  pay  any  rent,"  suffi- 
ciently shows  the  rule  not  to  have  existed 
at  that  day,  and  this  belief  is  confirmed 
by  the  remarks  in  Doe  v.  Smythe,  4  Maule 
&  Selwyn  347.     It  has  therefore  been  well 
suggested  that  "its  origin  must  be  sought 
in  the  general  principle  that  where  a  party 


has  kept  or  obtained  the  possession  of  land, 
which  he  otherwise  would  not  have  had, 
by  means  of  an  agreement  or  understand- 
ing, he  shall  be  estopped  from  setting  forth 
anything  in  opposition  to  its  terms  or  in- 
tent in  a  suit  brought  in  order  to  recover 
such  possession.  The  principle  was,  of 
necessity,  called  into  being  by  that  feature 
of  the  action  of  ejectment  which  requires 
an  absolute  possessory  title  in  the  plain- 
tiff, and  makes,  in  its  absence,  the  mere 
fact  of  possession  decisive  in  favor  of  de- 
fendant." Judge  Hare's  Notes  to  Doe  v. 
Oliver,  2  Smith's  Leading  Cases. 

But  whatever  may  have  been  the  origin 
of  the  rule,  it  is  one  now  well  settled  on 
both  sides  of  the  Atlantic  (see  the  cases 
collected  in  Mr.  Morris's  edition  of  Smith's 
Landlord  and  Tenant  234,  note)  ;  subject, 
however,  to  the  exception  that  the  tenant 
may  show  that  he  has  been  bond,  fide 
evicted  under  a  title  paramount  to  that  of 
his  landlord,  or  that  his  landlord's  title 
has  expired.  Rawle  on  Covenants  for 
Title  264.  R- 


247 


OF   INCORPOREAL   HEREDITAMENTS. 


it  is  at  present.  The  tenant,  therefore,  was  able  to  prevent  his  lord  from 
making  a  conveyance  to  any  person  whom  he  did  not  choose  to  accept  as 
a  landlord ;  for  he  could  refuse  to  attorn  tenant  to  the  purchaser,  and 
without  attornment  the  grant  was  invalid.  The  landlord,  however,  had 
it  always  in  his  power  to  convey  his  reversion  by  the  expensive  process 
of  a  fine  duly  levied  in  the  Court  of  Common  Pleas  ;  for  this  method  of 
conveyance,  being  judicial  in  its  nature,  was  carried  into  effect  without 
the  tenant's  concurrence ;  and  the  attornment  of  the  tenant,  which  for 
r*9481  many  purposes  was  desirable,  *could  in  such  case  be  compelled.(A) 
It  can  easily  be  imagined  that  a  doctrine  such  as  this  was 
found  inconvenient  when  the  rent  paid  by  the  tenant  became  the  only 
service  of  any  benefit  rendered  to  the  landlord.  The  necessity  of  at- 
tornment to  the  validity  of  the  grant  of  a  reversion  was  accordingly  abol- 
ished by  a  statute  passed  in  the  reign  of  Queen  Anne.(^)1  But  the 
statute  very  properly  provides(&)  that  no  tenant  shall  be  prejudiced  or 
damaged  by  payment  of  his  rent  to  the  grantor,  or  by  breach  of  any 
condition  for  non-payment  of  rent,  before  notice  of  the  grant  shall  be 
given  to  him  by  the  grantee.2  And  by  a  further  statute,(£)  any  attorn- 
ment which  may  be  made  by  tenants  without  their  landlords'  consent,  to 
strangers  claiming  title  to  the  estate  of  their  landlords,  is  rendered  null 
and  void.3     Nothing,  therefore,  is  now  necessary  for  the  valid  conveyance 


(A)  Shep.  Touch.  254. 
\k)  Sect.  10. 


(i)  Stat.  4  &  5  Anne,  c.  16,  s.  9. 
\l)  Stat.  11  Geo.  II.  c.  19,  s.  11. 


1  Consequently,  the  grantee  of  a  land- 
lord succeeds  to  all  his  grantor's  rights 
with  respect  to  the  lease,  whether  the 
tenant  agreed  to  the  grant  of  the  re- 
version or  not;  and  at  the  end  of  the  terra 
the  grantee  may  proceed  in  his  own  name 
to  get  possession  of  the  premises  let  by  his 
grantor.  Tilford  v.  Fleming,  14  P.  F.  Smith 
300. 

2  This  provision  of  the  statute  of  Anne 
is  considered  to  be  in  force  in  Pennsyl- 
vania, 3  Binney  625,  as  in  other  States. 
Farley  v.  Thompson,  15  Mass.  26;  Burden 
v.  Thayer,  3  Metcalf  78  ;  New  York  Revised 
Statutes,  vol.  1,  p.  739,  \  146;  Baldwin  v. 
Walker,  21  Connecticut  168;  Coker  v. 
Pearsall,  6  Alabama  542.  R. 

3  There  is,  however,  this  proviso,  "No- 
thing herein  contained  shall  extend  to 
vacate  or  affect  any  attornment  made  pur- 
suant  to   and    in   consequence    of    some 


judgment  at  law,  or  decree  or  order  of  a 
court  of  equity,  or  made  with  the  privilege 
and  consent  of  the  landlord  or  landlords, 
lessor  or  lessors,  or  to  any  mortgagee  after 
the  mortgage  is  become  forfeited."  The 
fairness  of  this  proviso  is  sufficiently  mani- 
fest, and  the  rule  it  contains  has  been  ob- 
served both  where  such  a  statute  is  (Luns- 
ford  v.  Turner,  5  J.  J.  Marsh.  104)  and 
where  it  is  not  of  binding  authority,  and 
it  is  well  settled  that  a  payment  of  rent  by 
the  tenant  to  a  mortgagee,  claiming  under 
a  mortgage  prior  to  the  lease,  and  who  has 
at  the  time  a  right  of  entry,  is  a  sufficient 
defence  to  an  action  brought  to  recover 
the  rent  by  the  landlord  :  Jones  v.  Clark, 
20  Johns.  61  ;  Magill  v.  Hinsdale,  6  Con- 
necticut 469  ;  George  v.  Putney,  4  Cush. 
355  ;  Greeno  v.  Munson,  9  Verm.  37  ; 
Chambers  v.  Pleak,  6  Dana  428  ;  Pope  v. 
Biggs,  9  Barn.   &  Cress.  245.     See   Mayor 


OF   A 


REVERSION    AND    A   VESTED    REMAINDER.  248 

of  any  rent  service,  but  a  grant  by  deed  of  the  reversion,  to  which  such 
rent  is  incident.  When  the  conveyance  is  made  to  the  tenant  himself,  it 
is  called  a  release.(m) 

The  doctrine  that  rent  service,  being  incident  to  the  reversion  always 
follows  such  reversion,  formerly  gave  rise  to  the  curious  and  unpleasant 
consequence  of  the  rent  being  sometimes  lost  when  the  reversion  was 
destroyed.  For  it  is  possible,  under  certain  circumstances,  that  an 
estate  may  be  destroyed  and  cease  to  exist.  For  instance,  suppose  A  to 
have  been  a  tenant  of  lands  for  a  term  of  years,  and  B.  to  have  been  his 
undertenant  for  a  less  term  of  years  at  a  certain  rent ;  this  rent  was  an 
incident  of  A.'s  reversion,  that  is,  of  the  term  of  years  belonging  to  A 
If  then,  A.'s  term  should  by  any  means  have  been  destroyed,  the 
rent  paid  to  him  by  B.  would,  as  an  incident  of  such  term  have  been 
♦destroyed  also.     Now,  by  the  rules  of  law,  a  conveyance  ot  the  9] 

immediate  fee  simple  to  A.  would  at  once  have  destroyed  his 
term,-it  not  being  possible  that  the  term  of  years  and  the  estate  in  fee 
simple  should  subsist  together.     In  legal  language  the  term  of  years 
would  have  been  merged  in  the  larger  estate  in  fee  simple;  and  the  term 
being  merged  and  gone,  it  followed  as  a  necessary  consequence  that  all 
its  incidents,  of  which  B.'s  rent  was  one,  ceased  also.(n)     This  unpleasant 
result  was  some  time  since  provided  for  and  obviated  with  respect  to 
leases  surrendered  in  order  to  be  renewed,-the  owners  of  the  new  leases 
being  invested  with  the  same  right  to  the  rent  of  undertenants   and  the 
same  remedy  for  recovery  thereof,  as  if  the  original  leases  had  been  kept 
on  foot  (o)     But  in  all  other  cases  the  inconvenience  continued,  until  a 
remedy  was  provided  by  the  act  to  simplify  the  transfer  of  property.(j>) 
This  act,  however,  was  shortly  afterwards  repealed  by  the  act  to  amend 
the  law  of  real  property,!?)  which  provides,  in  a  more  efficient  though 
somewhat  crabbed  clause,(r)  that,  when  the  reversion  expectant  on  a  lease, 
made  either  before  or  after  the  passing  of  the  act,  of  any  tenements 
or  hereditaments  of  any  tenure,  shall  after  the  1st  of  October,  1845,  be 

(    \   A»i,   r,    isn  (n)  Webb  v.  Russell,  3  T.  R.  393. 

gsll^Jo  II.  c.  28,  s.  6i  3  Prest.  CoJ.  ,'».  ;  Cousins  v.  Phillip,,  3  Hurlst.  * 

Colt   892  ;  extended  to  crown  lands  by  stat.  8  &  9  Vict.  c.  99,  s.  7. 

{P)  Stat.  7  &  8  Vict.  c.  76,  s.  12.  (?)  Stat.  8  &  9  Viet  o.  106. 

(r)  Sect.  9. 

ofPoolev.Whitt,15Mees.&Welsby577;  Rawle  on  Covenants  forTitU >.*£jj£ 

Waddilove  v.   Barnet,  2  Bing.  N.  C.  538;  to  Moses  v.  Galhmore,  1  Smith  s  Leadm0 

Franklin   v.  Carter,    1    Com.  Bench  760;  Cases  847,  6th  Am.  ed. 
Graham   v.   Alsopp,    3    Exchequer    198  ; 


249  OF   INCORPOREAL   HEREDITAMENTS. 

surrendered  or  merge,  the  estate,  which  shall  for  the  time  being  confer, 
as  against  the  tenant  under  the  same  lease,  the  next  vested  right  to  the 
same  tenements  or  hereditaments,  shall,  to  the  extent  and  for  the  purpose 
of  preserving  such  incidents  to  and  obligations  on  the  same  reversion  as 
but  for  the  surrender  or  merger  thereof  would  have  subsisted,  be  deemed 
the  reversion  expectant  on  the  same  lease. 

*2.  A  remainder  chiefly  differs  from  a  reversion  in  this, — that 
L  -J  between  the  owner  of  the  particular  estate  and  the  owner  of  the 
remainder  (called  the  remainder-man)  no  tenure  exists.  They  both 
derive  their  estates  from  the  same  source,  the  grant  of  the  owner  in  fee 
simple ;  and  one  of  them  has  no  more  right  to  be  lord  than  the  other. 
But  as  all  estates  must  be  holden  of  some  person,  in  the  case  of  a  grant 
of  a  particular  estate  with  a  remainder  in  fee  simple,  the  particular  tenant 
and  the  remainder-man  both  hold  their  estates  of  the  same  chief  lord  as 
their  grantor  held  before. (s)1  It  consequently  follows  that  no  rent  ser- 
vice is  incident  to  a  remainder,  as  it  usually  is  to  a  reversion ;  for  rent 
service  is  an  incident  of  tenure,  and  in  this  case  no  tenure  exists.  The 
other  point  of  difference  between  a  reversion  and  a  remainder  we  have 
already  noticed, (£)  namely,  that  a  reversion  arises  necessarily  from  the 
grant  of  the  particular  estate,  being  simply  that  part  of  the  estate  of  the 
grantor  which  remains  undisposed  of,  but  a  remainder  is  always  itself 
created  by  an  express  grant. 

We  have  seen  that  the  powers  of  alienation  possessed  by  a  tenant  in 
fee  simple  enable  him  to  make  a  lease  for  a  term  of  years,  or  for  life,  or 
a  gift  in  tail,  as  well  as  to  grant  an  estate  in  fee  simple.  But  these 
powers  are  not  simply  in  the  alternative,  for  he  may  exercise  all  these 
powers  of  alienation  at  one  and  the  same  moment ;  provided,  of  course, 
that  his  grantees  come  in  one  at  a  time,  in  some  prescribed  order,  the  one 
waiting  for  liberty  to  enter  until  the  estate  of  the  other  is  determined. 
In  such  a  case  the  ordinary  mode  of  conveyance  is  alone  made  use  of; 

(*)  Litt.  s.  215.  (t)  Ante,  p.  242. 

1  This  was  the  result  of  the  statute  of  18  out  of  the  feoffor,  there  this  act  extendeth 

Ed.  I.  c.  1  [Quia  emptores  terrarum),  which  to  estates    for  life  "and  in  taile  ;  as  if  an 

forbade  the  creation  of  tenure  on  thealiena-  estate  for  life  or  in  taile  be  made  of  land, 

tion  of  estates  in  fee  simple.     Coke  says:  the  remainder  in  fee;  there   then    tenant 

"  But  yet  tenant  for  life  and  tenant  in  taile  for   life    or  in  taile  shall   hold  de   capitali 

are  not  wholly  excluded  by  force  of  these  domino  by  force  of  this  act;  but  otherwise 

words  (infeodo  simplici)  out  of  this  statute,  it  is  when  a  reversion    remaineth   in  the 

for  where  the  whole  fee  simple  passeth  donor  or  lessor."     2  Inst.  505. 


OF    A    REVERSION    AND   A    VESTED    REMAINDER.  250 

and  until  the  passing  of  the  act  to  amend  the  law  of  real  property,(w)  if 
a  feoffment  should  have  been  employed,  there  would  have  *been    j-*251J 
no  occasion  for  a  deed  to  limit  or  mark  out  the  estates  of  those 
who  could  not  have  immediate   possession. (v)     The  seisin  would  have 
been  delivered  to  the  first  person  who  was  to  have  possession  ;{x)  and  if 
such  person  was  to  have  been  only  a  tenant  for  a  term  of  years,  such 
seisin  would  have  immediately  vested  in  the  prescribed  owner  of  the  first 
estate  of  freehold,  whose  bailiff  the  tenant  for  years  is  accounted  to  be. 
From  such  first  freeholder,  on  the  determination  of  his  estate,  the  seisin, 
by  whatever  means  vested  in  him,  will  devolve  on  the  other  grantees  of 
freehold  estates  in  the  order  in  which  their  estates  are  limited  to  come 
into  possession.     So  long  as  a  regular  order  is  thus  laid  down,  in  which 
the  possession  of  the  lands  may  devolve,  it  matters  not  how  many  kinds 
of  estates  are  granted,  or  on  how  many  persons  the  same  estate  is  be- 
stowed.    Thus  a  grant  may  be  made  at  once  to  fifty  different  people 
separately  for  their  lives.     In  such  case  the  grantee  for  life  who  is  first 
to  have  the  possession  is  the  particular  tenant  to  whom,  on  a  feoffment, 
seisin  would  be  delivered,  and  all  the  rest  are  remainder- men  ;  whilst  the 
reversion  in  fee  simple,  expectant  on  the  decease  of  them  all,  remains 
with  the  grantor.     The  second  grantee  for  life  has  a  remainder  expectant 
on  the  decease  of  the  first,  and  will  be  entitled  to  possession  on  the 
determination  of  the  estate  of  the  first,  either  by  his  decease  or  in  case 
of  his  forfeiture,  or  otherwise.     The  third  grantee  must  wait  till  the 
estate  both  of  the  first  and  second  shall  have  determined ;  and  so  of  the 
rest.     The  mode  in  which  such  a  set  of  estates  would  be  marked  out  is 
as  follows :— To  A.  for  his  life,  and  after  his  decease  to  B.  for  his  life, 
and  after  his  decease   to   C.  for  his  life,  and  so  on.     This  method  of 
limitation  is  quite  sufficient  for  the  purpose,  although  it  by  no  means 
expresses  all  that  is  *meant.     The  estates  of  B.  and  C.  and  the    r*252~| 
rest  are  intended  to  be  as  immediately  and  effectually  vested  in 
them  as  the  estate  of  A. ;  so  that  if  A.  were  to  forfeit  his  estate,  B. 
would  have  an  immediate  right  to  the  possession ;  and  so  again  C.  would 
have  a  right  to  enter  whenever  the  estates  both  of  A.  and  B.  might 
determine.     But,  owing  to  the  necessary  infirmity  of  language,  all  this 
cannot  be  expressed  in  the  limitations  of  every  ordinary  deed.     The 
words  "and   after  his  decease"  are,  therefore,  considered  a  sufficient 
expression  of  an  intention  to  confer  a  vested  remainder  after  an  estate  for 
life.     In  the  case  we  have  selected  of  numerous  estates,  every  one  given 

(w)  Stat.  8  &  9  Vict.  c.  106,  s.  3  ;  ante,  p.  152. 

(y)  Litt.  s.  60  ;  Co.  Litt.  143  a.  (x)  Litt.  s.  60 ;  2  Black.  Com.  167. 


252  OF   INCORPOREAL   HEREDITAMENTS. 

only  for  the  life  of  each  grantee,  it  is  manifest  that  very  many  of  the 
grantees  can  derive  no  benefit ;  and,  should  the  first  grantee  survive  all 
the  others,  and  not  forfeit  his  estate,  not  one  of  them  will  take  anything. 
Nevertheless,  each  one  of  these  grantees  has  an  estate  for  life  in  remain- 
der, immediately  vested  in  him  ;  and  each  of  these  remainders  is  capable 
of  being  transferred,  both  at  law  and  in  equity,  by  a  deed  of  grant,  in 
the  same  manner  as  a  reversion.  In  the  same  way,  a  grant  may  be  made 
of  a  term  of  years  to  one  person,  an  estate  for  life  to  another,  an  estate 
in  tail  to  a  third,  and  last  of  all  an  estate  in  fee  simple  to  a  fourth ;  and 
these  grantees  may  be  entitled  to  possession  in  any  prescribed  order, 
except  as  to  the  grantee  of  the  estate  in  fee  simple,  who  must  necessarily 
come  last ;  for  his  estate,  if  not  literally  interminable,  yet  carries  with  it 
an  interminable  power  of  alienation,  which  would  keep  all  the  other 
grantees  for  ever  out  of  possession.  But  the  estate  tail  may  come  first 
into  possession,  then  the  estate  for  life,  and  then  the  term  of  years ;  or 
the  order  may  be  reversed,  and  the  term  of  years  come  first,  then  the 
estate  for  life,  then  the  estate  tail,  and  lastly  the  estate  in  fee  simple, 
which,  as  we  have  said,  must  wait  for  possession  till  all  the  others  shall 
have  been  determined.  When  a  remainder  comes  after  an  estate  tail, 
it  is  liable  to  be  *barred  by  the  tenant  in  tail,  as  we  have 
"-  '  3  ^  already  seen.  This  risk  it  must  run.  But,  if  any  estate,  be  it 
ever  so  small,  is  always  ready,  from  its  commencement  to  its  end,  to 
come  into  possession  the  moment  the  prior  estates,  be  they  what  they 
may,  happen  to  determine,  it  is  then  a  vested  remainder,  and  recognized 
in  law  as  an  estate  grantable  by  deed.(#)  It  would  be  an  estate  in  pos- 
session, were  it  not  that  other  estates  have  a  prior  claim ;  and  their 
priority  alone  postpones,  or  perhaps  may  entirely  prevent,  possession 
being  taken  by  the  remainder-man.  The  gift  is  immediate;  but  the 
enjoyment  must  necessarily  depend  on  the  determination  of  the  estates 
of  those  who  have  a  prior  right  to  the  possession. 

In  all  the  cases  which  we  have  as  yet  considered,  each  of  the  remain- 
ders has  belonged  to  a  different  person.  No  one  person  has  had  more 
than  one  estate.  A.,  B.,  and  C.  may  each  have  had  estates  for  life ;  or 
the  one  may  have  had  a  term  of  years,  the  other  an  estate  for  life,  and 
the  last  a  remainder  in  tail,  or  in  fee  simple.  But  no  one  of  them  has  as 
yet  had  more  than  one  estate.  It  is  possible,  however,  that  one  person 
may  have,  under  certain  circumstances,  more  than  one  estate  in  the  same 
land  at  the  same  time, — one  of  his  estates  being  in  possession,  and  the 

(y)  Fearne,  Cont.  Rem.  216  ;  2  Prest.  Abst.  113. 


OP    A    REVERSION    AND    A   VESTED    REMAINDER. 


253 


other  in  remainder,  or  perhaps  all  of  them  being  remainders.  The  lim- 
itation of  a  remainder  in  tail  or  in  fee  simple  to  a  person  who  has  already 
an  estate  of  freehold,  as  for  life,  is  governed  by  a  rule  of  law,  known  by 
the  name  of  the  rule  in  Shelley's  Case,1 — so  called  from  a  celebrated  case 
in  Lord  Coke's  time,  in  which  the  subject  was  much  discussed,(z) — 
although  the  rule  itself  is  of  very  ancient  *date.(a)  As  this 
rule  is  generally  supposed  to  be  highly  technical,  and  founded  •-  '  J 
on  principles  not  easily  to  be  perceived,  it  may  be  well  to  proceed  gradu- 
ally in  the  attempt  to  explain  it.2 

(z)  Shelley's  Case,  1  Rep.  94,  104. 

(a)  Year  Book,  18  Edw.  II.  577,  translated  7  Man.  &  Gran.  944  (E.  C.  L.  R.  vol.  49), 
n.  (c)  ;  38  Edw.  III.  26  b  ;  40  Edw.  III.  9. 


1  The  reader  of  Shelley's  Case  will  ob- 
serve that  in  the  case  itself  no  question 
arose  upon  the  rule,  but  the  latter  is  so 
clearly  stated  in  the  argument  that  it  is 
always  called  by  the  name  stated  in  the 
text.  R 

2  The  rule  itself  is  this  :  When  the  an- 
cestor, by  any  gift  or  conveyance,  takes 
an  estate  of  freehold,  and  in  the  same  gift 
or  conveyance,  an  estate  is  limited,  either 
mediately  or  immediately,  to  his  heirs  in 
fee  or  in  tail,  in  such  case  "the  heirs"  are 
words  of  limitation  of  the  estate,  and  not 
words  of  purchase. 

The  different  speculative  opinions  as  to 
the  origin  of  the  rule  are  thus  condensed 
in  a  very  recent  work  :  "  It  has  been  sup- 
posed by  some  that  the  rule  is  of  feudal 
origin,  and  was  introduced  to  prevent 
frauds  upon  tenure  ;  for  if  the  heir  or  heirs 
of  the  body  of  the  ancestor  had  been  held 
to  take  by  purchase,  they  would  not,  upon 
the  death  of  the  ancestor,  have  been  liable 
to  the  burdens  imposed  upon  a  descent,  or 
the  lord  or  donor  might  be  prejudiced  by 
the  loss  of  wardship,  marriage,  and  other 
fruits  of  tenure.  By  some  it  has  been  said 
that  the  rule  had  its  origin  from  the  prej- 
udice that  might  happen  to  the  heirs 
themselves,  by  the  loss  of  the  remainder, 
if  the  ancestor  should  do  anything  to  for- 
feit or  determine  his  estate  for  life  after 
the  determination  of  the  intermediate  es- 
tate ;  for  they,  not  being  capable  of  taking 
such  remainder,  when  such  preceding 
estates  ended,  could  never  after  lay  claim 


to  it ;  and  so  an  unwary  ancestor  might 
defeat  his  heir  of  the  purchase ;  or  lastly, 
from  the  conformity  or  parity  of  reason 
they  bear  to  a  limitation  to  A.  and  his 
heirs,  or  heirs  male  or  female,  of  his  body  ; 
for  as  the  one  gives  an  estate  for  life,  by 
implication,  and  more,  so  the  other  gives 
him  the  same  in  express  words,  and  more  ; 
and  expressio  eorum  quae  tacite  insunt 
nihil  operatur.  And  the  interposition  of 
another  estate  between  them  only  breaks 
the  order  of  the  limitation,  not  the  opera- 
tion of  the  words;  which  being  the  same 
in  both  cases,  ought  to  have  the  same 
operation  and  construction,  Fearne,  Cont. 
Rem.  83,  85.  Mr.  Justice  Blackstone,  in 
Perrin  v.  Blake,  was  rather  inclined  to 
believe  that  the  rule  was  established  to 
prevent  the  inheritance  from  being  in 
abeyance  ;  and  that  one  principal  founda- 
tion of  it  was  to  obviate  the  mischief  of 
too  frequently  putting  the  inheritance  in 
suspense  or  abeyance.  Another  founda- 
tion, he  said  might  be,  and  was  probably, 
laid  in  a  principle  diametrically  opposite 
to  the  genius  of  feudal  institutions,  namely, 
a  desire  to  facilitate  the  alienation  of 
land,  and  to  throw  it  into  the  track  of 
commerce  one  generation  sooner,  by  vest- 
ing the  inheritance  in  the  ancestor,  than 
if  he  continued  tenant  for  life,  and  the 
heir  was  declared  a  purchaser.  The 
learned  judge  refers  to  what  he  believes  to 
be  the  earliest  case  in  which  the  principle 
was  established  (18  Ed.  II.  fol.  577),  for 
the  purpose  of  facilitating  the  alienation 


254  OF    INCORPOREAL    HEREDITAMENTS. 

We  have  already  seen  that,  in  ancient  times,  the  feudal  holding  of  an 
estate  granted  to  a  vassal  continued  only  for  his  life.(J)  And  from  the 
earliest  times  to  the  present  day  a  grant  or  conveyance  of  lands,  made 
by  any  instrument  (a  will  only  excepted),  to  A.  B.  simply,  without  fur- 
ther words,  will  give  him  an  estate  for  his  life,  and  no  longer.  If  the 
grant  was  anciently  made  to  him  and  his  heirs,  his  heir,  on  his  death, 
became  entitled  ;  and  it  was  not  in  the  power  of  the  ancestor  to  prevent 
the  descent  of  his  estate  accordingly.  He  could  not  sell  it  without  the 
consent  of  his  lord  ;  much  less  could  he  then  devise  it  by  his  will.  The 
ownership  of  an  estate  in  fee  simple  was  then  but  little  more  advantageous 
than  the  possession  of  a  life  interest  at  the  present  day.  The  powers  of 
alienation  belonging  to  such  ownership,  together  with  the  liabilities  to 
which  it  is  subject,  have  almost  all  been  of  slow  and  gradual  growth,  as 
has  already  been  pointed  out  in  different  parts  of  the  preceding  chap- 
ters.^) A  tenant  in  fee  simple  was,  accordingly,  a  person  who  held  to 
him  and  his  heirs ;  that  is,  the  land  was  given  to  him  to  hold  for  his  life, 
and  to  his  heirs  to  hold  after  his  decease.  It  cannot,  therefore,  be 
wondered  at  that  a  gift  expressly  in  these  terms,  "  To  A.  for  his  life, 
and  after  his  decease  to  his  heirs,"  should  have  been  anciently  regarded 
as  identical  with  a  gift  to  A.  and  his  heirs,  that  is,  a  gift  in  fee  simple. 
r*9-^-i    ^or>  if  sucn  *was  tne  law  formerly,  can  it  be  matter  of  surprise 

■  ^  that  the  same  rule  should  have  continued  to  prevail  up  to  the 
present  time.  Such  indeed  has  been  the  case.  Notwithstanding  the 
vast  power  of  alienation  now  possessed  by  a  tenant  in  fee  simple,  and  the 
great  liability  of  such  an  estate  to  involuntary  alienation  for  the  purpose 
of  satisfying  the  debts  of  the  present  tenant,  the  same  rule  still  holds; 
and  a  grant  to  A.  for  his  life,  and  after  his  decease  to  his  heirs,  will  now 
convey  to  him  an  estate  in  fee  simple,  with  all  its  incidents ;  and  in  the 
same  manner,  a  grant  to  A.  for  his  life,  and  after  his  decease  to  the 

(b)  Ante.  p.  17. 

(c)  Ante,  pp.  17,  35-41,  60-63. 


of  the  land  by  charging  it  with  the  debts  "  The  origin  of  the  rule,  however  plau- 

of  the  ancestor.     Mr.  Hargrave  considered  sible  may  be    the    suggestion    of  learned 

the  rule  as  one  branch  of  a  policy  of  law  men  upon  the  subject,  is  lost  in  obscurity  ; 

adopted    to    prevent    the  annexation  to  a  but  whatever  that  may  be,  or  whether  its 

real  descent  of  the  qualities  and  proper-  continuance    can    be    justified    upon    any 

ties  of  a  purchase  ;  so  that  in  effect  the  rational  grounds,  it  still  remains  as  firmly 

object  of  the  rule  was  that  no  man  should  rooted    in    English  jurisprudence    as  any 

raise  in  another  an  estate  of  inheritance,  other  rule  whose  origin  is  clear,  and  whose 

and  at  the   same   time   make   the  heir  of  utility    is    manifest."      Tudor's    Leading 

that   person    a   purchaser.     1   Harg.  Law  Cases  on  Real  Property  482.                  R. 
Tracts  572  ;  Fearne  85,  86. 


OF    A    REVERSION    AND    A    VESTED    REMAINDER.  255 

heirs  of  his  body,  will  now  convey  to  him  an  estate  tail  as  effectually  as 
a  orant  to  him  and  the  heirs  of  his  body.  In  these  cases  therefore,  as 
well  as  in  ordinary  limitations  to  A.  and  his  heirs,  or  to  A.  and  the 
heirs  of  his  body,  the  words  heirs  and  heirs  of  his  body  are  said  to  be 
ivords  of  limitation  ;  that  is,  words  which  limit  or  mark  out  the  estate  to 
be  taken  by  the  gran  tee.  (d)  At  the  present  day,  when  the  heir  is  per- 
haps the  last  person  likely  to  get  the  estate,  these  words  of  limitation 
are  regarded  simply  as  formal  means  of  conferring  powers  and  privileges 
on  the  grantee — as  mere  technicalities,  and  nothing  more.  But,  in 
ancient  times,  these  same  words  of  limitation  really  meant  what  they 
said,  and  gave  the  estate  to  the  heirs  or  the  heirs  of  the  body  of  the 
grantee,  after  his  decease,  according  to  the  letter  of  the  gift.  The 
circumstance  that  a  man's  estate  was  to  go  to  his  heir  was  the  very 
thing  which  afterwards  enabled  him  to  convey  to  another  an  estate  in 
fee  simple.(e)  And  the  circumstance  that  it  was  to  go  to  the  heir  of  his 
body  was  that  which  alone  enabled  him,  in  after  times,  to  bar  an  estate 
tail  and  dispose  of  the  lands  entailed  by  means  of  a  common  recovery. 

*Having  proceeded  thus  far,  we  have  already  mastered  the  r*256~l 
first  branch  of  the  rule  in  Shelley  s  Case,  namely,  that  which 
relates  to  estates  in  possession.  This  part  of  the  rule  is,  in  fact,  a  mere 
enunciation  of  the  proposition  already  explained,  that  when  the  ancestor, 
by  any  gift  or  conveyance,  takes  an  estate  for  life,  and  in  the  same  gift 
or  conveyance1  an  estate2  is  immediately  limited  to  his  heirs  in  fee  or 
in  tail,  the  words  "the  heirs"  are  words  of  limitation  of  the  estate  of 
the  ancestor.  Suppose,  however,  that  it  should  anciently  have  been 
wished  to  interpose  between  the  enjoyment  of  the  lands  by  the  ancestor 

(d)  See  ante,  pp.  143,  144;  Perrin  v.  Blake,  ante,  p.  213. 

(e)  Ante,  p.  42. 


1  It  must  be  by  the  same  gift  or  convey-  estates  being  governed  by  the  same  rule 
ance  ;  for,  if  one  by  deed  give  an  estate  to  as  legal  estates,  it  has  been  before  (supra, 
his  son  for  life,  and  by  his  will  devise  it  p.  163,  n.)  noticed  that  the  rule  in  Shelley's 
to  the  heirs  male  of  his  body,  the  son  takes  Case  applies  to  the  former  as  well  as  to 
only  an  estate  for  life,  with  remainder  in  the  latter.  It  is  necessary,  however,  that 
tail  to  his  heirs  male,  as  purchasers :  Doe  both  the  estates  should  be  legal,  or  both 
d.  Fonnereau  v.  Fonnereau,  Douglas's  Rep.  equitable  ;  for  where  one  is  legal  and  the 
508.  A  will  and  schedule,  or,  it  is  pre-  other  equitable,  the  rule  does  not  apply, 
sumed,  a  will  and  codicils,  are,  however,  and  the  heirs  take  as  purchasers :  Jones 
to  be  considered,  as  to  this,  as  one  instru-  v.  Lord  Say  and  Sele,  8  Viner's  Abr.  262, 
ment:  Hayes  d.  Foorde  v.  Foorde,  2  Wm.  pi.  19  ;  Curtis  v.  Rice,  12  Vesey  89  ;  Adams 
Blacks.  698.                                                 R-  v.  Adams,  6  Queen's  Bench  860 ;  Tallman 

2  In   noticing   the   subject  of  equitable  v.  Wood,  26  Wendell  9.  R. 

16 


256  OF   INCORPOREAL    HEREDITAMENTS. 

and  the  enjoyment  by  the  heir  the  possession  of  some  other  party  for 
some  limited  estate,  as  for  his  own  life.  Thus  let  the  estate  have  been 
given  to  A.  and  his  heirs,  but  with  a  vested  estate  to  B.  for  his  own  life, 
to  take  effect  in  possession  next  after  the  decease  of  A., — thus  suspend- 
ing the  enjoyment  of  the  lands  by  the  heir  of  A.  until  after  the  deter- 
mination of  the  life  estate  of  B.  In  such  a  case  it  is  evident  that  B. 
would  have  had  a  vested  estate  for  his  life,  in  remainder,  expectant  on 
the  decease  of  A. ;  and  the  manner  in  which  such  remainder  would 
have  been  limited  would,  as  we  have  seen,(/)  have  been  to  A.  for  his  life, 
and  after  his  decease  to  B.  for  his  life.  The  only  question  then  remain- 
ing would  be  as  to  the  mode  of  expressing  the  rest  of  the  intention, — 
namely,  that,  subject  to  B.'s  life  estate,  A.  should  have  an  estate  in  fee 
simple.  To  this  case  the  same  reasoning  applies  as  we  have  already  made 
use  of  in  the  case  of  an  estate  to  A.  for  his  life,  and  after  his  decease 
to  his  heirs.  For  an  estate  in  fee  simple  is  an  estate,  by  its  very  terms, 
to  a  man  and  his  heirs.  But,  in  the  present  case,  A.  would  have  already 
had  ids  estate  given  him  by  the  first  limitation  to  himself  for  his  life ; 
r*9^71  notning>  therefore,  would  remain  but  to  give  the  estate  to  his 
*heirs,  in  order  to  complete  the  fee  simple.  The  last  remainder 
would,  therefore,  be  to  the  heirs  of  A. ;  and  the  limitations  would  run 
thus :  "  To  A.  for  his  life,  and  after  his  decease  to  B.  for  his  life,  and 
after  his  decease  to  the  heirs  of  A."  The  heir,  in  this  case,  would  not 
have  taken  any  estate  independently  of  his  ancestor  any  more  than  in 
the  common  limitation  to  A.  and  his  heirs :  the  heir  would  have  claimed 
the  estate  only  by  its  descent  from  his  ancestor,  who  had  previously 
enjoyed  it  during  his  life ;  and  the  interposition  of  the  estate  of  B.  would 
have  merely  postponed  that  enjoyment  by  the  heir,  which  would  other- 
wise have  been  immediate.  But  we  have  seen  that  the  very  circumstance 
of  a  man's  having  an  estate  which  is  to  go  to  his  heir  will  now  give  him 
a  power  of  alienation  either  by  deed  or  will,  and  enable  him  altogether 
to  defeat  his  heir's  expectations.  And,  in  a  case  like  the  present,  the 
same  privilege  will  now  be  enjoyed  by  A. ;  for,  whilst  he  cannot  by  any 
means  defeat  the  vested  remainder  belonging  to  B.  for  his  life,  he  may, 
subject  to  B.'s  life  interest,  dispose  of  the  whole  fee  simple  at  his  own 
discretion.  A.  therefore  will  now  have  in  these  lands,  so  long  as  B.  lives, 
two  estates,  one  in  possession  and  the  other  in  remainder.  In  posses- 
sion A.  has,  with  regard  to  B.,  an  estate  only  for  his  own  life.  In 
remainder,  expectant  on  the  decease  of  B.,  he  has,  in  consequence  of  his 
life  interest  being  followed  by  a  limitation  to  his  heirs,  a  complete  estate 

(/)  Ante,  p.  251. 


OF   A    REVERSION    AND    A    VESTED    REMAINDER.  257 

in  fee  simple.  The  right  of  B.  to  the  possession,  after  A.'s  decease,  is 
the  only  thing  which  keeps  the  estate  apart,  and  divides  it,  as  it  were,  in 
two.  If,  therefore,  B.  should  die  during  A.'s  life,  A.  will  be  tenant  for 
his  own  life,  with  an  immediate  remainder  to  his  heirs ;  in  other  words 
he  will  be  tenant  to  himself  and  his  heirs,  and  will  enjoy,  without  any 
interruption,  all  the  privileges  belonging  to  a  tenant  in  fee  simple. 

*By  parity  of  reasoning,  a  similar  result  would  follow  if  the 
remainder  were  to  the  heirs  of  the  body  of  A.,  or  for  an  estate  L  J 
in  tail,  instead  of  an  estate  in  fee  simple.  The  limitation  to  the  heirs 
of  the  body  of  A.  would  coalesce,  as  it  is  said,  with  his  life  estate,  and 
give  him  an  estate  tail  in  remainder,  expectant  on  the  decease  of  B. ; 
and  if  B.  were  to  die  during  his  lifetime,  A.  would  become  a  complete 
tenant  in  tail  in  possession. 

The  example  we  have  chosen,  of  an  intermediate  estate  to  B.  for  life, 
is  founded  on  a  principle  evidently  applicable  to  any  number  of  inter- 
mediate estates,  interposed  between  the  enjoyment  of  the  ancestor  and 
that  of  his  heir.  Nor  is  it  at  all  necessary  that  all  these  estates  should 
be  for  life  only ;  for  some  of  them  may  be  larger  estates,  as  estates  in 
tail.  For  instance,  suppose  lands  given  to  A.  for  his  life,  and  after  his 
decease  to  B.  and  the  heirs  of  his  body,  and  in  default  of  such  issue 
(which  is  the  method  of  expressing  a  remainder  after  an  estate  tail),  to 
the  heirs  of  A.  In  this  case  A.  will  have  an  estate  for  life  in  possession, 
with  an  estate  in  fee  simple  in  remainder,  expectant  on  the  determination 
of  B.'s  estate  tail.  An  important  case  of  this  kind  arose  in  the  reio-n  of 
Edward  IIL(g)  Lands  were  given  to  one  John  de  Sutton  for  his  life, 
the  remainder,  after  his  decease,  to  John  his  son,  and  Eline,  the  wife  of 
John  the  son,  and  the  heirs  of  their  bodies  ;  and  in  default  of  such  issue, 
to  the  right  heirs  of  John  the  father.  John  the  father  died  first ;  then, 
John  and  Eline  entered  into  possession.  John  the  son  then  died,  and 
afterwards  Eline  his  wife,  without  leaving  any  heir  of  her  body.  R., 
another  son,  and  heir  at  law  of  John  de  Sutton,  the  father,  then  entered. 
And  it  was  decided  by  all  the  justices  that  he  was  ^liable  to  pay  r*.?;;QT 
relief(h)  to  the  chief  lord  of  the  fee,  on  account  of  the  descent  •-  -  J 
of  the  lands  to  himself  from  John  the  father.  Thorpe,  who  seems  to 
have  been  a  judge,  thus  explained  the  reason  of  the  decision  : — "  You 
are  in  as  heir  to  your  father,  and  your  brother  [father  ?]  had  the  free- 

(ff)  Provost  of  Beverley's   Case,  Year  Book,  40  Edw.  III.  9.-    See  1  Prest.  Estates 
304. 

(h)  See  ante,  pp.  120,  122,  124. 


259  OF   INCORPOREAL   HEREDITAMENTS. 

hold  before ;  at  which  time,  if  John  his  son  and  Eline  had  died  [without 
issue]  in  his  lifetime,  he  would  have  been  tenant  in  fee  simple."1 

The  same  principles  will  apply  where  the  first  estate  is  an  estate  in 
tail,  instead  of  an  estate  for  life.  Thus,  suppose  lands  to  be  given  to  A. 
and  the  heirs  male  of  his  body  begotten,  and  in  default  of  such  issue,  to 
the  heirs  female  of  his  body  begotten.^')  Here,  in  default  of  male 
heirs  of  the  body  of  A.,  the  heirs  female  will  inherit  from  their  ancestor 
the  estate  in  tail  female,  which  by  the  gift  had  vested  in  him.  There  is 
no  need  to  repeat  the  estate  which  the  ancestor  enjoys  for  his  life,  and  to 
limit  the  lands,  in  default  of  heirs  male,  to  him  and  to  the  heirs  female 
of  his  body  begotten.  This  part  of  his  estate  in  tail  female  has  been 
already  given  to  him  in  limiting  the  estate  in  tail  male.  The  heirs  female, 
being  mentioned  in  the  gift,  will  be  supposed  to  take  the  lands  as  heirs, 
that  is,  by  descent  from  their  ancestor,  in  whom  an  estate  in  tail  female 
must  consequently  be  vested  in  his  lifetime.  For,  the  same  rule,  founded 
on  the  same  principle,  will  apply  in  every  instance ;  and  this  rule  is  no 
other  than  the  rule  in  Shelley's  Case,  which  lays  it  down  for  law  that 
when  the  ancestor,  by  any  gift  or  conveyance,  takes  an  estate  of 
freehold,  and,  in  the  same  gift  or  conveyance,  an  estate  is  limited,  either 
mediately  or  immediately,  to  his  heirs  in  fee  or  in  tail,  the  words  "  the 
heirs"  are  words  of  limitation  of  the  estate  of  the  ancestor.  The  heir, 
r*2fi01  ^  ne  s^ou^  ta^e  any  interest,  must  take  as  heir  by  *descent 
from  his  ancestor ;  for  he  is  not  constituted,  by  the  words  of  the 
gift  or  conveyance,  a  purchaser  of  any  separate  and  independent  estate 
for  himself.2 

(i)  Litt.  s.  719  ;  Co.  Litt.  376  b. 

1  "Of  all  the  cases  particularized  in  the  Riddle,  3  Binney  152;  George  v.  Morgan, 
report"  (of  Shelley's  Case),  says  Mr.  Pres-  4  Harris  95;  Dott  v.  Cunnington,  1  Bay 
ton,  supra,  "  this  alone  is  intelligible,  and  453  ;  Carr  v.  Porter,  1  McCord's  Ch.  R. 
it  is  the  only  case  from  which  any  con-  60;  Davidson  v.  Davidson,  1  Hawks  163; 
elusion  to  the  rule  under  consideration  Roy  v.  Garnett,  2  Washington  9  ;  Smith  v. 
can  be  drawn.  That  case,  however,  is  so  Chapman,  1  Hen.  &  Munf.  240  ;  Lyles  v. 
clear  and  precise  to  the  purpose,  that  it  Digge,  6  Har.  &  Johns.  364 ;  Chilton  v. 
does  not  leave  a  doubt  of  the  point  Henderson,  9  Gill  432 ;  Polk  v.  Faris,  9 
decided,  and  it  is  material  that  one  of  the  Georgia  209  ;  McFeeley  v.  Moore,  5  Ham- 
express  grounds  of  the  adjudication  was  mond  465.  "  The  rule  in  Shelley's  Case," 
that  the  ancestor  had  a.  freehold  preceding."  said  the  late  Ch.  J.  Gibson,  in  Hileman  v. 

R.  Bouslaugh,  1  Harris  351,  "  ill  deserves  the 

2  On  this  side  of  the  Atlantic,  the  rule  epithets  bestowed  on  it  in  the  argument. 
in  Shelley's  Case  is,  in  most  of  the  States,  Though  of  feudal  origin,  it  is  not  a  relic 
adopted  as  part  of  the  common  law:  of  barbarism,  or  a  part  of  the  rubbish  of 
James'    Claim,    1    Dallas   47  ;    Findlay  v.  the  dark  ages.     It  is  part  of  a  system  ;  an 


OF   A    REVERSION   AND    A    VESTED    REMAINDER. 


260 


The  rule,  it  will  be  observed,  requires  that  an  estate  of  freehold 
merely  should  be  taken  by  the  ancestor,  and  not  necessarily  an  estate 
for  the  whole  of  his  own  life  or  in  tail.  In  the  examples  we  have  given, 
the  ancestor  has  had  an  estate  at  least  for  his  own  life,  and  the  enjoy- 
ment of  the  lands  by  other  parties  has  postponed  the  enjoyment  by  his 
heirs.     But  the  ancestor  himself,  as  well  as  his  heirs,  may  be  deprived 


artificial  one,  it  is  true,  but  still  a  system, 
and  a  complete  one.  The  use  of  it,  while 
fiefs  were  predominant,  was  to  secure  the 
fruits  of  the  tenure,  by  preventing  the  an- 
cestor from  passing  the  estate  to  the  heir, 
as  a  purchaser,  through  a  chasm  in  the 
descent,  disencumbered  of  the  burdens 
incident  to  it  as  an  inheritance  ;  but  Mr. 
Hargrave,  Mr.  Justice  Blackstone,  Mr. 
Fearne,  Chief  Baron  Gilbert,  Lord  Chan- 
cellor Parker,  and  Lord  Mansfield,  ascribe 
to  it  concomitant  objects  of  more  or  less 
value  at  this  day;  among  them,  the  un- 
fettering of  estates,  by  vesting  the  inherit- 
ance in  the  ancestor,  and  making  it  alien- 
able a  generation  sooner  than  it  would 
otherwise  be.  However  that  may  be,  it 
happily  falls  in  with  the  current  of  our 
policy.  By  turning  a  limitation  for  life, 
with  remainder  to  heirs  of  the  body,  into 
an  estate  tail,  it  is  the  handmaid,  not 
only  of  Taltarum's  Case  (as  to  which,  see 
supra,  p.  44),  but  of  our  statute  for  barring 
entails  by  a  deed  acknowledged  in  court; 
and  where  the  limitation  is  to  heirs  gene- 
ral, it  cuts  off  what  would  otherwise  be  a 
contingent  remainder,  destructible  only 
by  a  common  recovery.  In  a  masterly 
disquisition  on  the  principles  of  expound- 
ing dispositions  of  real  estate,  Mr.  Hayes, 
who  had  sounded  the  profoundest  depths 
of  the  subject,  is  by  no  means  clear  that 
the  rule  ought  to  be  abolished  even  by 
the  legislature  ;  and  Mr.  Hargrave  shows, 
in  one  of  his  tracts,  that  to  engraft  pur- 
chase on  descent  would  produce  an  am- 
phibious species  of  inheritance,  and  con- 
found a  settled  distinction  in  the  law  of 
estates.  It  is  admitted  that  the  rule  sub- 
verts a  particular  intention  in  perhaps 
every  instance  ;  for,  as  was  said  in  Roe  v. 
Bedford,  4  Maule  &  Selw.  363,  it  is  proof 


against  even  an  express  declaration  that 
the  heirs  shall  take  as  purchasers.  But 
it  is  an  intention  which  the  law  cannot 
indulge,  consistently  with  the  testator's 
general  plan,  and  which  is  necessarily 
subordinate  to  it.  It  is  an  intention  to 
create  an  inalienable  estate  tail  in  the 
first  donee,  and  to  invert  the  rule  of  in- 
terpretation, by  making  the  general  in- 
tention subservient  to  the  particular  one. 
A  donor  is  no  more  competent  to  make 
tenancy  for  life  a  source  of  inheritable 
succession,  than  he  is  competent  to  create 
a  perpetuity,  or  a  new  canon  of  descent. 
The  rule  is  too  intimately  connected  with 
the  doctrine  of  estates  to  be  separated 
from  it  without  breaking  the  ligaments 
of  property.  It  prevails  in  Maryland, 
Georgia,  Tennessee,  as  well  as,  perhaps, 
in  most  of  the  other  States,  and  it  pre- 
vailed in  New  York  till  it  was  abolished 
by  statute.  We  have  no  such  statute ; 
and  it  has  always  been  recognized  by  this 
court  as  a  rule  of  property." 

The  rule  has,  however,  been  abolished 
by  statute  in  Maine,  Massachusetts,  Con- 
necticut, New  York,  Illinois,  Missouri,  and 
Michigan  ;  in  Mississippi,  as  to  real  estate 
only:  Powell  v.  Brandon,  24  Miss.  343; 
and  in  New  Hampshire  and  New  Jersey, 
in  cases  of  devises  only :  see  Bowers  v. 
Porter,  4  Pickering  205 ;  Richardson  v. 
Wheatland,  7  Metcalf  172  ;  Goodrich  v. 
Lambert,  10  Connecticut  448.  R. 

It  is  also  abolished  by  statute  in  Ala- 
bama, Kentucky,  Minnesota,  Tennessee, 
Virginia,  and  Wisconsin  ;  in  Ohio  as  to 
wills,  and  in  Rhode  Island  as  to  devises  to 
one  for  life,  remainder  to  his  children  or 
issue  generally  :  and  see,  as  to  New  Jer- 
sey, Den  v.  Demarest,  1  N.  J.  525 ;  2  Washb. 
Real  Prop.  607,  note  (4th  ed.). 


260  OF   INCORPOREAL   HEREDITAMENTS. 

of  possession  for  a  time;  and  yet  an  estate  in  fee  simple  or  fee  tail  may 
be  effectually  vested  in  the  ancestor,  subject  to  such  deprivation.  For 
instance,  suppose  lands  to  be  given  to  A.,  a  widow,  during  her  life,  pro- 
vided she  continue  a  widow  and  unmarried,  and  after  her  marriage,  to 
B.  and  his  heirs  during  her  life,  and  after  her  decease,  to  her  heirs. 
Here  A.  has  an  estate  in  fee  simple,  subject  to  the  remainder  to  B.  for 
her  life,  expectant  on  the  event  of  her  marrying  again. (k)  For  to  apply 
to  this  case  the  same  reasoning  as  to  the  former  ones,  A.  has  still  an 
estate  to  her  and  to  her  heirs.  She  has  the  freehold  or  feudal  possession, 
and  after  her  decease,  her  heirs  are  to  have  the  same.  It  matters  not 
to  them  that  a  stranger  may  take  it  for  a  while.  The  terms  of  the  gift 
declare  that  what  was  once  enjoyed  by  the  ancestor  shall  afterwards  be 
enjoyed  by  the  heirs  of  such  ancestor.  These  very  terms  then  make  an 
estate  in  fee  simple,  with  all  its  incidental  powers  of  alienation,  controlled 
only  by  the  rights  of  B.  in  respect  of  the  estate  conferred  on  him  by 
the  same  gift. 

But  if  the  ancestor  should  take  no  estate  of  freehold  under  the  gift, 
r*9f»ii  but  the  land  should  be  granted  only  to  *his  heirs,  a  very  different 
effect  would  be  produced.  In  such  a  case  a  most  material  part 
of  the  definition  of  an  estate  in  fee  simple  would  be  wanting.  For  an 
estate  in  fee  simple  is  an  estate  given  to  a  man  and  his  heirs,  and  not 
merely  to  the  heirs  of  a  man.  The  ancestor,  to  whose  heirs  the  lands 
were  granted,  would  accordingly  take  no  estate  or  interest  by  reason  of 
the  gift  to  his  heirs.  But  the  gift,  if  it  should  ever  take  effect,  would  be 
a  future  contingent  estate  for  the  person  who,  at  the  ancestor's  decease, 
should  answer  the  description  of  heir  to  his  freehold  estates.  The  gift 
would  accordingly  fall  within  the  class  of  future  estates,  of  which  an  ex- 
planation is  endeavored  to  be  given  in  the  next  chapter.  (I) 

(k)  Curtis  v.  Price,  12  Ves.  89. 

(I)  The  most  concise  account  of  the  rule  in  Shelley's  Case,  together  with  the  princi- 
pal distinctions  which  it  involves,  is  that  given  by  Mr.  Watkins  in  his  Essay  on  the  Law 
of  Descents,  p.  154  et  seq.  (194,  4th  ed.). 


*CHAPTER   II.  [*2623 

OF    A    CONTINGENT    REMAINDER. 

Hitherto  we  have  observed  a  very  extensive  power  of  alienation  pos- 
sessed by  a  tenant  in  fee  simple.     He  may  make  an  immediate  grant,  no 
of  one  eLte  merely,  or  two,  but  of  as  many  as  he  may  please,  provided 
he  ascertain  the  order  in  which  his  grantees  are  to  take  possession. (a) 
This  power  of  alienation,  it  will  be  observed,  may  in  some  degree  render 
less  easy  the  alienation  of  the  land  at  a  future  time  ;  for,  it*  plain  that 
no  sale  can  in  future  be  made  of  an  unincumbered  estate  in  fee  simple 
in  the  lands,  unless  every  owner  of -each  of  these  estates  will  concur  in 
the  sale,  and  convey  his  individual  interest,  whether  he  be  the  pa    icular 
tenant,  or  the  owner  of  any  one  of  the  estates  in  remainder.    But  if  all  these 
owners  should  concur,  a  valid  conveyance  of  an  estate  in  fee  simp  e  can 
at  any  time  be  made.     The  exercise  of  the  power  of  alienation   in  the 
creation  of  vested  remainders,  does  not,  therefore,  withdraw  the  land  for 
a  moment  from  that  constant  liability  to  complete  alienation  which  it  has 
been  the  sound  policy  of  modern  law  as  much  as  possible  to  encourage. 

But,  great  as  is  the  power  thus  possessed,  the  law  has  granted  to  a 
tenant  in  fee  simple,  and  to  every  other  owner  to  the  extent  of  his  estate 
a  greater  power  still.     For,  it  enables  him,  under  certain  restrictions,  to 
grant  estates  to  commence  in  interest,  and  not  in  possession  merely,  at  a 
future  time.     So  that  during  the  period  *which  may  elapse  betore         63] 
the  commencement  of  such  estates,  the  land  may  be  withdrawn 
from  its  former  liability  to  complete  alienation,  and  be  tied  up  lor  the 
benefit  of  those  who  may  become  the  owners  of  such  future  estates,     lhe 
power  of  alienation  is  thus  allowed  to  be  exercised  in  some  degree  to  its 
own  destruction.     For,  till  such  future  estates  come  into  existence,  they 
may  have  no  owners  to  convey  them.     Of  these  future  estates  there  are 
two  kinds,  a  contingent  remainder  and  an  executory  interest.     The  ter- 
mer is  allowed  to  be  created  by  any  mode  of  conveyance.     The  latter  can 
arise  only  by  the  instrumentality  of  a  will,  or  of  a  use  executed,  or  made 
into  an  estate  by  the  Statute  of  Uses.     The  nature  of  an  executory  in- 
terest will  be  explained  in  the  next  chapter.     The  present  will  be  devoted 
to  contingent  remainders,  which,  though  abolished  by  the  act  to  simp  ify 
the  transfer  of  property,(&)  were  revived  the  next  session  by  the  act  to 

(a)  Ante,  pp.  250,  251.  (6)  Stat.  Y  &  8  Vict.  c.  76,  s.  8. 


263  OF   INCORPOREAL    HEREDITAMENTS. 

amend  the  law  of  real  property, (e)  by  which  the  former  act,  so  far  as  it 
abolished  contingent  remainders,  was  repealed  as  from  the  time  of  its 
taking  effect. 

The  simplicity  of  the  common  law  allowed  of  the  creation  of  no  other 
estates  than  particular  estates,  followed  by  the  vested  remainders,  which 
have  already  occupied  our  attention.  A  contingent  remainder — a  remain- 
der not  vested,  and  which  never  might  vest, — was  long  regarded  as  illegal. 
Down  to  the  reign  of  Henry  VI.  not  one  instance  is  to  be  found  of  a 
_  contingent  remainder  being  held  valid. (d)  The  early  *authori- 
L  J  ties,  on  the  contrary,  are  rather  opposed  to  such  a  conclusion. (e) 
And,  at  a  later  period,  the  authority  of  Littleton  is  express,(/)  that  every 
remainder,  which  beginneth  by  a  deed,  must  be  in  him  to  whom  it  is  lim- 
ited, before  livery  of  seisin  is  made  to  him  who  is  to  have  the  immediate 
freehold.  It  appears,  however,  to  have  been  adjudged,  in  the  reign  of 
Henry  VI.,  that  if  land  be  given  to  a  man  for  his  life,  with  remainder 

(c)  Stat.  8  &  9  Vict.  c.  106,  s.  1. 

(d)  The  reader  should  be  informed  that  this  assertion  is  grounded  only  on  the 
writer's  researches.  The  general  opinion  appears  to  be  in  favor  of  the  antiquity  of 
contingent  remainders.  See  3d  Rep.  of  Real  Property  Commissioners,  p.  23;  1  Steph. 
Com.  614,  n.  (a).  And  an  attempt  to  create  a  contingent  remainder  appears  in  an  un- 
dated deed  in  Mados's  Formulare  Anglicanum,  No.  535,  p.  305. 

(e)  Year  Book,  11  Hen.  IV.  74  ;  in  which  case,  a  remainder  to  the  right  heirs  of  a 
man,  who  ivas  dead  before  the  remainder  was  limited,  was  held  to  vest  by  purchase  in  the 
person  who  was  heir.  But  it  was  said  by  Hankey,  J.,  that  if  a  gift  were  made  to  one 
for  his  life,  with  remainder  to  the  right  heirs  of  a  man  who  was  living,  the  remainder 
would  be  void,  because  the  fee  ought  to  pass  immediately  to  him  to  whom  it  was  lim- 
ited. Note,  also,  that  in  Mandeville's  Case  (Co.  Litt.  26  b),  which  is  an  ancient  case 
of  the  heir  of  the  body  taking  by  purchase,  the  ancestor  was  dead  at  the  time  of  the 
gift.  The  cases  of  rents  are  not  apposite,  as  a  diversity  was  long  taken  between  a 
grant  of  a  rent  and  a  conveyance  of  the  freehold.  The  decision  in  7  Hen.  IV.  6  b, 
cited  in  Archer's  Case  (1  Rep.  66  b),  was  on  a  case  of  a  rent-charge.  The  authority 
of  P.  11  Rich.  II.  Fitz.  Ab.  tit.  Detinue,  46,  which  is  cited  in  Archer's  Case  (1  Rep.  67  a), 
and  in  Chudleigh's  Case  (1  Rep.  135  b),  as  well  as  in  the  margin  of  Co.  Litt.  378  a,  is 
merely  a  statement  by  the  judge  of  the  opinion  of  the  counsel  against  whom  the  decis- 
ion was  made.  It  runs  as  follows  : — "  Cherton  to  Rykill — You  think  (boms  quides) 
that  inasmuch  as  A.  S.  was  living  at  the  time  of  the  remainder  being  limited,  that  if 
he  was  dead  at  the  time  of  the  remainder  falling  in,  and  had  a  right  heir  at  the  time  of 
the  remainder  falling  in,  that  the  remainder  would  be  good  enough  ?  Rykill — Yes, 
sir.  And  afterwards  in  Trinity  Term,  judgment  was  given  in  favor  of  Wad  [the  oppo- 
site counsel]  :  quod  nota  bene." 

It  is  curious  that  so  much  pains  should  have  been  taken  by  modern  lawyers  to 
explain  the  reasons  why  a  remainder  to  the  heirs  of  a  person,  who  takes  a  prior  estate 
of  freehold,  should  not  have  been  held  to  be  a  contingent  remainder  (see  Fearne,  Cont. 
Rem.  83  et  seq.),  when  the  construction  adopted  (subsequently  called  the  rule  in  Shel- 
ley's Case)  was  decided  on  before  contingent  remainders  were  allowed. 

(/)  Litt.  s.  721  ;  see  also  M.  27  Hen.  VIII.  24  a. 


OF   A    CONTINGENT   REMAINDER.  264 

to  the  right  heirs  of  another  who  is  living,  and  who  afterwards  dies,  and 
then  the'tenant  for  life  dies,  the  heir  of  the  stranger  shall  have  this  land  ; 
and  yet  it  was  said  *that,  at  the  time  of  the  grant,  the  remain-    ^265-j 
der  was  in  a  manner  void.(#)     This  decision  ultimately  pre- 
vailed      And  the  same  case  is  accordingly  put  by  Perkins,  who  lays  it 
down  that  if  lands  he  leased  to  A.  for  life,  the  remainder  to  the  right 
heirs  of  J  S.,  who  is  alive  at  the  time  of  the  lease,  this  remainder  is  good, 
because  there  is  one  named  in  the  lease  (namely,  A.,  the  lessee  for  life), 
who  may  take  immediately   in   the  beginning  of  the  leased)      Inis 
appears  to  have  been  the  first  instance  in  which  a  contingent  remainder 
was  allowed.     In  this  case  J.  S.  takes  no  estate  at  all;  A.  has  a  life 
interest:  and,  so  long  as  J.  S.  is  living,  the  remainder  in  fee  does  not 
vest  in  any  person  under  the  gift;  for,  the  maxim  is  nemo  est  hceres 
viventis,  and  J.  S.  being  alive,  there  is  no  such  person  living  as  his  heir. 
Here,  accordingly,  is  a  future  estate,  which  will  have  no  existence  until 
the  decease  of  J.  S. ;  if,  however,  J.  S.  should  die  in  the  lifetime  of  A 
and  if  he  should  leave  an  heir,  such  heir  will  then  acquire  a  vested 
remainder  in  fee  simple,  expectant  on  A.'s  life  interest.     But,  until 
these  contingencies  happen  or  fail,  the  limitation  to  the  right  heirs  ot  J. 
S.  confers  no  present  estate  on  any  one,  but  merely  gives  rise  to  the 
prospect  of  a  future  estate,  and  creates  an  interest  of  that  kind  which  is 
known  as  a  contingent  remainder. {if 

(g)  Year  Book,  9  Hen.  VI.  24  a;   H.  32  Hen.  VI.   Fitz.  Abr.,  tit.  Feoffments  and 

Faits  99 

(h)  Pe'rk.  s.  52.  0')  3  ReP-  20  a>  in  Boraston's  case. 


i  In  the  determination,  however,  of  the  these  circumstances,  the  judges,  from  the 
question  whether  a  limitation  is  of  a  vested  earliest  times,  were  always  inclined  to  de- 
or  a  contingent  estate,  courts  incline  to  cide  that  estates  devised  were  vested;  and 
favor  the  former,  for  reasons  thus  expressed  it  has  long  been  an  established  rule,  tor 
by  Best,  J.,  in  Duffield  v.  Duffield,  1  Dow  &  the  guidance  of  the  courts  of  Westminster 
Clark  311-  "The  rights  of  different  mem-  in  construing  devises,  that  all  estates  are 
bers  of  families  not  being  ascertained,  while  to  be  holden  to  be  vested,  except  estates 
estates  remain  contingent,  such  families  in  the  devise  of  which  a  condition  prece- 
continue  in  an  unsettled  state,  which  is  dent  to  the  vesting  is  so  clearly  expressed 
often  productive  of  inconvenience,  and  that  the  courts  cannot  treat  them  as  vested 
sometimes  of  injury  to  them.  If  the  pa-  without  deciding  in  direct  opposition  to 
rents'  attaining  a  certain  age  be  a  condi-  the  terms  of  the  will.  If  there  be  the  least 
tion  precedent  to  the  vesting  of  the  estates,  doubt,  advantage  is  to  be  taken  of  the  cir- 
by  the  death  of  their  parents  before  they  cumstances  occasioning  the  doubt ;  and 
are  of  that  age  children  lose  estates  which  what  seems  to  make  a  condition  is  holden 
were  intended  for  them,  and  which  their  to  have  only  the  effect  of  postponing  the 
relation  to  the  testator  may  give  them  the  right  of  possession." 
strongest   claim  to.     In   consideration  of 


265  OP   INCORPOREAL   HEREDITAMENTS. 

The  gift  to  the  heirs  of  J.  S.  has  been  determined  to  be  sufficient  to 
confer  an  estate  in  fee  simple  on  the  person  who  may  be  his  heir,  without 
any  additional  limitation  to  the  heirs  of  such  heir.(&)  If,  however,  the 
gift  be  made  after  the  31st  of  December,  1833,  or  by  the  will  of  a  testator 
who  shall  have  died  after  that  day,  the  land  will  descend,  on  the  decease 
of  the  heir  *intestate,  not  to  his  heir,  but  to  the  next  heir  of 
■-  -'J.  S.,  in  the  same  manner  as  if  J.  S.  had  been  first  entitled  to 
the  estate.(Z) 

When  contingent  remainders  began  to  be  allowed,  a  question  arose, 
which  is  yet  scarcely  settled,  what  becomes  of  the  inheritance,  in  such  a 
case  as  this,  during  the  life  of  J.  S.  ?  A.,  the  tenant  for  life,  has  but  a 
life  interest ;  J.  S.  has  nothing,  and  his  heir  is  not  yet  in  existence. 
The  ancient  doctrine,  that  the  remainder  must  vest  at  once  or  not  at  all, 
had  been  broken  in  upon  ;  but  the  judges  could  not  make  up  their  minds 
also  to  infringe  on  the  corresponding  rule,  that  the  fee  simple  must,  on 
every  feoffment  which  confers  an  estate  in  fee,  at  once  depart  out  of  the 
feoffor.  They,  therefore,  sagely  reconciled  the  rule  which  they  left 
standing  to  the  contingent  remainders  which  they  had  determined  to 
introduce,  by  affirming  that,  during  the  contingency,  the  inheritance  was' 
either  in  abeyance,  or  in  gremio  legis  or  else  in  nubibus.(m)  Modern 
lawyers,  however,  venture  to  assert  that  what  the  grantor  has  not  dis- 
posed of  must  remain  in  him,  and  cannot  pass  from  him  until  there  exists 
some  grantee  to  receive  it.(w)  And  when  the  gift  is  by  way  of  use  under 
the  Statute  of  Uses,  there  is  no  doubt  that,  until  the  contingency  occurs, 
the  use,  and  with  it  the  inheritance,  result  to  the  grantor.  So,  in  the 
case  of  a  will,  the  inheritance,  until  the  contingency  happens,  descends 
to  the  heir  of  the  testator.(o) 

But  whatever  difficulties  may  have  beset  the  departure  from  ancient 
r*or71  rn^es,>  tne  necessities  of  society  required  that  *future  estates,  to 
L  -1  vest  in  unborn  or  unascertained  persons,  should  under  certain 
circumstances  be  allowed.  And,  in  the  time  of  Lord  Coke,  the  validity 
of  a  gift  in  remainder,  to  become  vested  on  some  future  contingency,  was 
well  established.  Since  his  day  the  doctrine  of  oontingent  remainders 
has  gradually  become  settled ;  so  that,  notwithstanding  the  uncertainty 

(k)  2  Jarman  on  Wills  2,  1st  ed. ;  49,  2d  ed. ;  55,  56,  3d  ed. 
(I)  Stat.  3  &  4  Will.  IV.  c.  106,  s.  4. 

(m)  Co.  Litt.  342  a;  1  P.Wms.  515,  516  ;  Bac.  Abr.  tit.  Remainder  and  Reversion  (c). 
(n)  Fearne,  Cont.  Rem.  361.     See,  however,  2  Prest.  Abst.  100-107,  where  the  old 
opinion  is  maintained. 

(o)  Fearne,  Cont.  Rem.  351. 


Ofl7 
OF   A    CONTINGENT   REMAINDER.  -ul 

still  remaining  with  regard  to  one  or  two  points,  the  whole  system  now 

I"  a°otiiol  specimen  of  an  endless  variety  of  complex  c ases  al 

reducible  to  a  few  plain  and  simple  principles.     To  this  desirable  enu  me 

masteriy  treatise  of  Mr.  Fearne  on  this  subject^)  has  mainly  contributed. 

Let  us  new  obtain  an  accurate  notion  of  what  a  conthngerd ^remainder 
is  and  afterwards,  consider  the  rules  which  are  required  to  be  observes 
in'i  fetation.     We  have  already  said  that  a  «nt  remain^* 
n  future  estate      As  distinguished  from  an  executory  interest,  to  be  bei  e 
ft  "ntf,  it  is  a  future  estate,  which  waits  <^*gj«£ 
determination  of  the  estates  which  precede  it.     But d.sUng u  shed 
from  a  vested  remainder,"  it  is  an  estate  in  remainder,  which  is  «.£ ready 
from  its  commencement  to  its  end,  to  come  into  possession  *  »y  «™»«t 
when  the  prior  estates  may  happen  to  determine.     For  .    any contm 
gent  remainder  should,  at  any  time,  become  thus  ready ■     '  ~™  »  ° 
immediate  possession,  whenever  the  prior  estates  may  «~^£ 
then  be  contingent  no  longer,  but  will  at  once  become  a  ^£»» 
der.(o)     For  example,  suppose  that  a  gift  be  made  to  A.,  a  bachelor, 
his  life,  and  after  the  determination  of  'that  estate  by  forfeiture  ^ 

or  otherwise,  in  his  lifetime,  to  B.  and  his  heirs  during  the .life 
of  A.,  and  after  the  decease  of  A.,  to  the  eldest  son  of  A.  and th .hern 
of  the  body  of  such  son.  Here  wc  have  two  remainders,  one  of  which  IS 
vested,  anu  the  other  contingent.  The  estate  of  B.  is  vested^)  Why . 
Because  though  it  be  but  a  small  estate,  yet  it  is  ready  from  the  farst, 
and,  so  long  a!  it  lasts,  continues  ready  to  come  into  possession  when- 

&"23£?.Sf.HS=3s=3 

editor  Mr.  Josiah  William  Smith.                                       ^  ^  pp   ^  ^  ^ 
(q)  See  ante,  p.  25cJ.  v  J 

"T^tTe  «W  .ta.  the  „a-     For  -^f— ^^/r  £V£ 

that  the  particular  estate  may  last  .cage,,     to  ever  com.  ato  posses ,o a  ^ 

by  US   Hml.atioa,  than    the ,£*  . .re-  ^« ed    a  *°  ^         ^.^  shm„d  lhe 

rt^  ^r  rr  i°x  ££-  -*.  — ■  - * is  ~ 

have  expired-ceased  to  exist- before  the     tingent. 
prior  estate  shall  have  come  to  an  end. 


268  OF   INCORPOREAL   HEREDITAMENTS. 

ever  A.'s  estate  may  happen  to  determine.  There  may  be  very  little 
doubt  but  that  A.  will  commit  no  forfeiture,  but  will  hold  the  estate  as 
long  as  he  lives.  But,  if  his  estate  should  determine  the  moment  after 
the  grant,  or  at  any  time  whilst  B.'s  estate  lasts,  there  is  B.  quite  ready 
to  take  possession.  B.'s  estate,  therefore,  is  vested.  But  the  estate  tail 
to  the  eldest  son  of  A.  is  plainly  contingent.  For  A.,  being  a  bachelor, 
has  no  son ;  and,  if  he  should  die  without  one,  the  estate  tail  in  remain- 
der will  not  be  ready  to  come  into  possession  immediately  on  the  de- 
termination of  the  particular  estates  of  A.  and  B.  Indeed,  in  this  case 
there  will  be  no  estate  tail  at  all.  But  if  A.  should  marry  and  have  a 
son,  the  estate  tail  will  at  once  become  a  vested  remainder  ;  for,  so  long 
as  it  lasts,  that  is,  so  long  as  the  son  or  any  of  the  son's  issue  may  live, 
the  estate  tail  is  ready  to  come  into  immediate  possession  whenever  the 
prior  estates  may  determine,  whether  by  A.'s  death,  or  by  B.'s  forfeiture, 
supposing  him  to  have  got  possession. (s)  It  will  be  observed  that  here 
there  is  an  estate,  which,  at  the  time  of  the  grant,  is  future  in  interest, 
as  well  as  in  possession  ;  and  till  the  son  is  born,  or  rather  till  he  comes 
of  age,  the  lands  are  tied  up,  and  placed  beyond  the  power  of  complete 
alienation.  This  example  of  a  contingent  remainder  is  here  given  as  by 
far  the  most  usual,  being  that  which  occurs  every  day  in  the  settlement 
of  landed  estates. 

T*9691  *The  rules  which  are  required  for  the  creation  of  a  contingent 
remainder  may  be  reduced  to  two  ;  of  which  the  first  and  prin- 
cipal is  well  established,  but  the  latter  has  occasioned  a  good  deal  of 
controversy.  The  first  of  these  rules  is,  that  the  seisin,  or  feudal  pos- 
session, must  never  be  without  an  owner;  and  this  rule  is  sometimes 
expressed  as  follows,  that  every  contingent  remainder  of  an  estate 
of  freehold  must  have  a  particular  estate  of  freehold  to  support  it.(t) 
The  ancient  law  regarded  the  feudal  possession  of  lands  as  a  matter 
the  transfer  of  which  ought  to  be  notorious ;  and  it  accordingly  forbade 
the  conveyance  of  any  estate  of  freehold  by  any  other  means  than  an 
immediate  delivery  of  the  seisin,  accompanied  by  words,  either  written 
or  openly  spoken,  by  which  the  owner  of  the  feudal  possession  might  at 
any  time  thereafter  be  known  to  all  the  neighborhood.  If,  on  the 
occasion  of  any  feoffment,  such  feudal  possession  was  not  at  once  parted 
with,  it  remained  forever  with  the  grantor.  Thus  a  feoffment,  or  any 
other  conveyance  of  a  freehold,  made  to-day  to  A.,  to  hold  from 
to-morrow,  would  be  absolutely  void,  as  involving  a  contradiction.  For, 
if  A.  is  not  to  have  the  seisin  till  to-morrow,  it  must  not  be  given  him 
(«)  See  ante,  pp.  252,  253.  (I)  2  Black.  Com.  171. 


OF    A   CONTINGENT   REMAINDER.  269 

till  then.(w)  So,  if,  on  any  conveyance,  the  feudal  possession  -were 
given  to  accompany  any  estate  or  estates,  less  than  an  estate  in  fee 
simple,  the  moment  such  estates,  or  the  last  of  them,  determined,  such 
feudal  possession  would  again  revert  to  the  grantor,  in  right  of  his  old 
estate,  and  could  not  be  again  parted  with  by  him  without  a  fresh  con- 
veyance of  the  freehold.  Accordingly,  suppose  a  feoffment  to  be  made 
to  A.  for  his  life,  and  after  his  decease  and  one  day,  to  B.  and  his  heirs. 
Here,  the  moment  that  A.'s  estate  determines  by  his  death,  the  feudal 
possession,  which  is  not  to  belong  to  B.  till  one  day  afterwards,  reverts 
*to  the  feoffor,  and  cannot  be  taken  out  of  him  without  a  r*o7n-i 
new  feoffment.  The  consequence  is  that  the  gift  of  the  future 
estate,  intended  to  be  made  to  B.,  is  absolutely  void.  Had  it  been  held 
good,  the  feudal  possession  would  have  been  for  one  day  without  any 
owner,  or,  in  other  words,  there  would  have  been  a  so-called  remainder 
of  an  estate  of  freehold,  without  a  particular  estate  of  freehold  to  support 
it.  Let  us  now  take  the  case  we  have  before  referred  to,  of  an  estate 
to  A.,  a  bachelor,  for  his  life,  and  after  his  decease  to  his  eldest  son  in 
tail.  In  this  case  it  is  evident  that  the  moment  A.'s  estate  determines 
by  his  death,  his  son,  if  living,  must  necessarily  be  ready  at  once  to  take 
the  feudal  possession,  in  respect  of  his  estate  tail.  The  only  case  in 
which  the  feudal  possession  could,  under  such  a  limitation,  ever  be  with- 
out an  owner,  at  the  time  of  A.'s  decease,  would  be  that  of  the  mother 
being  then  enceinte  of  the  son.  In  such  a  case,  the  feudal  possession 
would  be  evidently  without  an  owner  until  the  birth  of  the  son ;  and 
such  posthumous  son  would  accordingly  lose  his  estate,  were  it  not  for  a 
special  provision  which  has  been  made  in  his  favor.  In  the  reign  of 
William  III.  an  act  of  parliament(v)  was  passed  to  enable  posthumous 
children  to  take  estates,  as  if  born  in  their  father's  lifetime.  And  the 
law  now  considers  every  child  en  ventre  sa  mere  as  actually  born,  for  the 
purpose  of  taking  any  benefit  to  which,  if  born,  it  would  be  entitled.^)1 

As  a  corollary  to  the  rule  above  laid  down,  arises  another  proposition, 
frequently  itself  laid  down  as  a  distinct  rule,  namely,  that  every  com- 
tingent  remainder  must  vest,  or  become  an  actual  estate,  during  the  con- 

(u)  2  Black.  Com.  166.  (v)  Stat.  10  &  11  Will.  III.  c.  16. 

(z)  Doe  v.  Clarke,  2  H.  Bl.  399 ;  Blackburn  v.  Stables,  2  Ves.  &  Beames  367  ;  Mogg 
v.  Mogg,  1  Meriv.  654;  Trower  v.  Butts,  1  Sim.  &  Stu.  181. 

1  The  law  is  the  same  as  to  this  on  both  but  in. many  of  them  the  statute  of  William 
sides  of  the  Atlantic,  even  in  those  States  III.  has  been  substantially  re-enacted.  See 
which  have  no  legislation  upon  the  subject,     2  Greenl.  Cruise  252 ;  3  Id.  320.  M. 


271  OF   INCORPOREAL   HEREDITAMENTS. 

[~*971 1  tinuance  *of  the  particular  estate  which  supports  it,  or  eo  instanti 
that  such  particular  estate  determines  ;  otherwise  such  contingent 
remainder  will  fail  altogether,  and  can  never  become  an  actual  estate  at  all. 
Thus,  suppose  lands  to  be  given  to  A.  for  his  life,  and  after  his  decease 
to  such  son  of  A.  as  shall  first  attain  the  age  of  twenty-four  years.  As 
a  contingent  remainder  the  estate  to  the  son  is  well  created  ;(y)  for  the 
feudal  seisin  is  not  necessarily  left  without  an  owner  after  A.'s  decease. 
If,  therefore,  A.  should,  at  his  decease,  have  a  son  who  should  then  be 
twenty-four  years  of  age  or  more,  such  son  will  at  once  take  the  feudal 
possession  by  reason  of  the  estate  in  remainder  which  vested  in  him  the 
moment  he  attained  that  age.  In  this  case  the  contingent  remainder  has 
vested  during  the  continuance  of  the  particular  estate.  But  if  there 
should  be  no  son,  or  if  the  son  should  not  have  attained  the  prescribed 
age  at  his  father's  death,  the  remainder  will  fail  altogether. (z)  For  the 
feudal  possession  will  then,  immediately  on  the  father's  decease,  revert, 
for  want  of  another  owner,  to  the  person  who  made  the  gift  in  right  of 
his  reversion.  And,  having  once  reverted,  it  cannot  now  belong  to  the 
son,  without  the  grant  to  him  of  some  fresh  estate  by  means  of  some 
other  conveyance.  An  exception  to  this  rule  has  now  been  made  by  the 
act  to  amend  the  law  as  to  contingent  remainders.(a)  This  act  provides 
that  every  contingent  remainder  created  by  any  instrument  executed 
after  *the  passing  of  the  act,  or  by  any  will  or  codicil  revived 
L  *"  WJ  or  republished  by  any  will  or  codicil  executed  after  that  date, 
in  tenements  or  hereditaments  of  any  tenure,  which  would  have  been 
valid  as  a  springing  or  shifting  use  or  executory  devise  or  other  limita- 
tion, had  it  not  had  a  sufficient  estate  to  support  it  as  a  contingent  re- 
mainder, shall,  in  the  event  of  the  particular  estate  determining  before 
the  contingent  remainder  vests,  be  capable  of  taking  effect  in  all  respects 
as  if  the  contingent  remainder  had  originally  been  created  as  a  springing 
or  shifting  use,  or  executory  devise,  or  other  executory  limitation.  It 
will  be  found  in  the  next  chapter,  which  treats  of  an  executory  interest, 
that  there  are  some  future  limitations,  which  are  valid  by  way  of  spring- 
ing or  shifting  use  in  a  deed,  or  executory  devise  in  a  will,  without  being 

(y)  2  Prest.  Abst.  148. 

(z)  Festing  v.  Allen,  12  Mees.  &  Wels.  279;  5  Hare  573.  See,  however,  as  to  this 
case,  Riley  v.  Garnett,  3  De  Gex  &  S.  629  ;  Browne  v.  Browne,  3  Sma.  &  Giff,  568,  qy  ? 
Re  Mid  Kent  Railway  Act,  1856,  ex  parte  Styan,  John.  387  ;  Holmes  v.  Prescott,  V.-C. 
W.,  10  Jur.,  N.  S.  507  ;  12  W.  R.  636  ;  Rhodes  v.  Whitehead,  2  Drew.  &  Sm.  532  ;  Price 
v.  Hall,  L.  R.,  5  Eq.  399;  Perceval  v.  Perceval,  L.  R.,  9  Eq.  386;  Re  Eddel's  Trust, 
V.-C.  B.,  L.  R.,  11  Eq.  559;  Brackenbury  v.  Gibbons,  L.  R.  2  Ch.  Div.  417  ;  Cunliffe  v. 
Brancker,  L.  R.,  3  Ch.  Div.  393. 

(a)  Stat.  40  &  41  Vict.  c.  33,  passed  2d  August,  1877. 


OF   A    CONTINGENT    KEMAINDER.  272 

preceded  by  any  particular  estate  of  freehold.     This  subject  will  accord- 
ingly be  resumed  in  the  next  chapter. 

A  contingent  remainder  cannot  be  made  to  vest  on  any  event  which  is 
illegal,  or  contra  bonos  mores.  Accordingly,  no  such  remainder  can  be 
given  to  a  child  who  may  be  hereafter  born  out  of  wedlock.  But  this 
can  scarcely  be  said  to  be  a  rule  for  the  creation  of  contingent  remain- 
ders. It  is  rather  a  part  of  the  general  policy  of  the  law  in  its  discour- 
agement of  vice.  In  the  reports  of  Lord  Coke,  however,  a  rule  is  laid 
down  of  which  it  may  be  useful  to  take  some  notice,  namely  that  the  event 
on  which  a  remainder  is  to  depend  must  be  a  common  possibility,  and  not  a 
double  possibility,  or  a  possibility  on  a  possibility,  which  the  law  will  not 
allow. (b)  This  rule,  though  professed  to  be  founded  on  former  precedents, 
is  not  to  be  found  in  any  of  the  cases  to  which  Lord  Coke  refers,  in 
none  of  which  do  either  of  the  expressions  "  possibility  on  a  possi- 
bility," *or  "  double  possibility,"  occur.  It  appears  to  owe  rs|c97q-i 
its  origin  to  the  mischievous  scholastic  logic  which  was  then  L  -1 
rife  in  our  courts  of  law,  and  of  which  Lord  Coke  had  so  high  an 
opinion  that  he  deemed  a  knowledge  of  it  necessary  to  a  complete 
lawyer.(c)  The  doctrine  is  indeed  expressly  introduced  on  the  au- 
thority of  logic  : — "  as  the  logician  saith,  potentia  est  duplex,  remota 
et  propinqua."(d)  This  logic,  so  soon  afterwards  demolished  by 
Lord  Bacon,  appears  to  have  left  behind  it  many  traces  of  its  exist- 
ence in  our  law  ;  and  perhaps  it  would  be  found  that  some  of  those 
artificial  and  technical  rules  which  have  the  most  annoyed  the  judges 
of  modern  times(e)  owe  their  origin  to  this  antiquated  system  of 
endless  distinctions  without  solid  differences.  To  show  how  little  of 
practical  benefit  could  ever  be  derived  from  the  distinction  between  a 
common  and  a  double  possibility,  let  us  take  one  of  Lord  Coke's  ex- 
amples of  each.  He  tells  us  that  the  chance  that  a  man  and  a  woman, 
both  married  to  different  persons,  shall  themselves  marry  one  another  is 
but  a  common  possibility.^)  But  the  chance  that  a  married  man  shall 
have  a  son  named  Geoffrey  is  stated  to  be  a  double  or  remote  possi- 
bility.^)    Whereas  it  is  evident  that  the  latter  event  is  at  least  quite  as 

(b)  2  Rep.  51  a;  10  Rep.  50  b.  (c)  Preface  to  Co.  Litt.  p.  37. 

(d)  2  Rep.  51  a. 

(e)  Such  as  the  rule  in  Dumpor's  Case,  4  Rep.  119.1 
(/)  10  Rep.  50  b  ;  Year  Book,  15  Hen.  VII.  10  b,  pi.  16. 
(g)  2  Rep.  51  b. 

1  Which  decided  that  a  condition  not  to     the  first  license  granted,  as  to  which  see  1 
alien  without  license  was  determined  by     Smith's  Leading  Cases  85,  and  infra  398.  R. 


273 


OF    INCORPOREAL    HEREDITAMENTS. 


likely  to  happen  as  the  former.  And  if  the  son  were  to  get  an  estate 
from  being  named  Geoffrey,  as  in  the  case  put,  there  can  be  very  little 
doubt  but  that  Geoffrey  would  be  the  name  given  to  the  first  son  who 
might  be  born. (h)     Respect  to  the  memory  of  Lord  Coke  has  long  kept 

V*9"±~\  on  ^00t  *n  our  ^aw  DO°ks0)  *tne  ru^e  tnat  a  possibility  on  a 
possibility  is  not  allowed  by  law  in  the  creation  of  contingent 
remainders.  But  the  authority  of  this  rule  has  long  been  declining,^') 
and  a  very  learned  judge  now  deceased(&)  declared  plainly  that  it  was 
abolished.1 

(h)  The  true  ground  of  the  decision  in  the  old  case  (10  Edw.  III.  45)  to  which  Lord 
Coke  refers  was,  no  doubt,  as  suggested  by  Mr.  Preston  (1  Prest.  Abst.  128).  that  the 
gift  was  made  to  Geoffrey  the  son,  as  though  he  were  living,  when  in  fact  there  was 
then  no  such  person. 

(i)  2  Black.  Com.  170;  Fearne,  Cont.  Rem.  252. 

(J)  See  Third  Report  of  Real  Property  Commissioners,  p.  29  ;  1  Prest.  Abst.  128,  129. 

(k)  Lord  St.  Leonards,  in  Cole  v.  Sewell,  1  Conn.  &  Laws  344;  s.  c.  4  Dru.  &  War. 
132.  The  decision  in  this  case  has  been  affirmed  in  the  House  of  Lords,  2  H.  of  L. 
Cases  186. 


1  The  language  of  Mr.  Fearne  as  to  this 
doctrine  of  a  possibility  upon  a  possibility 
is,  "  So  if  there  be  a  lease  for  life,  re- 
mainder to  the  heirs  of  J.  S.,  though  this 
remainder  be  good,  because  by  common 
possibility  J.  S.  may  die  during  the  partic- 
ular estate,  yet  if  there  be  no  such  person 
as  J.  S.  at  the  time  of  the  limitation,  not- 
withstanding such  a  person  should  after- 
wards be  born,  and  die  during  the  life  of 
the  tenant  for  life,  his  heir  shall  not  take 
by  virtue  of  such  limitation,  because  the 
possibility  on  which  it  is  to  take  effect  is 
too  remote  ;  for  it  amounts  to  the  concur- 
rence of  two  several  contingencies,  not  in- 
dependent and  collateral,  but  the  one  re- 
quiring the  previous  existence  of  the  other, 
and  yet  not  necessarily  arising  out  of  it, 
viz.:  first,  that  such  a  person  as  J.  S. 
should  be  born,  which  is  very  uncertain, 
and  secondly,  that  he  should  also  die  dur- 
ing the  particular  estate,  which  is  another 
uncertainty  grafted  upon  the  former.  This 
is  called  a  possibility  upon  a  possibility, 
which  Lord  Coke  tells  us  is  never  admitted 
by  intendment  of  law." 

Upon  this  passage  Mr.  Butler  remarks, 
that  "the  expression  of  a  possibility  upon 
a   possibility,  which,  in   the  language   of 


Lord  Coke,  is  never  admitted  by  intend- 
ment, must  not  be  understood  in  too  large 
a  sense ;"  and  he  refers  to  the  case  of 
Routledge  v.  Dorril,  2  Ves.  Jr.  357,  where 
a  trust  was  held  valid,  although  four  con- 
tingent events  must  first  have  happened — 
that  a  husband  and  wife  should  have  a 
child,  that  such  child  should  have  a  child, 
that  such  last-mentioned  child  should  be 
alive  at  the  decease  of  the  survivor  of  his 
grandfather  and  grandmother,  and  that  if 
such  child  were  a  grandson,  he  should  at- 
tain twenty-one,  and  if  a  granddaughter 
attain  that  age  or  marry. 

It  seems,  however,  to  have  been  at  some 
time  imagined  that  the  alleged  rule  in 
question  had  some  connection  with  the 
rule  against  perpetuities  (as  to  which  see 
the  next  chapter) ;  but  this  idea  was  thus 
noticed  in  the  Third  Report  of  the  Real 
Property  Commissioners,  referred  to  in  the 
text  :  "  It  is  a  mistake  to  suppose  that  at 
the  common  law,  properly  so  called,  there 
was  any  rule  against  perpetuities.  Lord 
Coke  observes,  '  A  possibility  which  shall 
make  a  remainder  good  ought  to  be  a 
common  possibility,  and  potentia  pro- 
pinqua;  as  death,  or  death  without  issue, 
or   coverture,  or  the  like.     If  a  lease   be 


OF    A    CONTINGENT    REMAINDER. 


274 


But  although  the  doctrine  of  Lord  Coke,  that  there  can  he  no  possi- 
bility on  a  possibility,  has  ceased  to  govern  the  creation  of  contingent 
remainders,  there  is  yet  a  rule  by  which  these  remainders  are  restrained 


made  for  life,  with  remainder  to  the  heirs 
of  J.  S.,  this  is  good  ;  for,  by  common  pos- 
sibility, J.  S.  may  die  during  the  life  of  a 
tenant  for  life  ;  but  if,  at  the  time  of  the 
limitation,  there  is  no  such  person  as  J.  S., 
but  during  the  life  of  the  tenant  for  life,  J. 
S.  is  born  and  dies,  his  heirs  shall  never 
take.'    2  Rep.  51.    This  amounts  to  a  dou- 
ble possibility  ;   first,  that  such  a  person 
as  J.  S.  shall  be  born,  which  is  very  un- 
certain;  and,  secondly,  that  he  shall  die 
during  the  particular  estate,  which  is  an- 
other uncertainty  grafted  upon  the  former. 
Now  this  has  nothing  restrictive  of  aliena- 
tion  in  it,   since    both   the    common    and 
double  possibility  must  have  taken  effect, 
if  at  all,  upon   the   determination  of  the 
particular  estate.    Indeed,  the  existence  of 
the  rule  itself  may  be  considered  as  ex- 
tremely doubtful.     Lord  Chancellor  Not- 
tingham observed,  '  That  there  may  be  a 
possibility    upon   a   possibility,  and   that 
there  may  be  a  contingency  upon  a  con- 
tingency, is  neither  unnatural  nor  absurd 
in  itself;  but  the  contrary  rule,  given  as 
a  reason  by  my  Lord  Popham  in  the  Rec- 
tor of  Chedington's  Case,  looks  like  a  rea- 
son of  art;  but,  in  truth,  there  is  no  kind 
of  reason  in  it,  and  I  have  known  that  rule 
often  denied  in  Westminster  Hall.'   Modern 
determinations  have  established  his  lord- 
ship's opinion." 

The  language  used  by  Lord  St.  Leonards 
(then  Sir  E.  Sugden)  in  Cole  v.  Sewell,  4 
Drury  &  Warren  27  (where  it  is  more  fully 
reported  than  in  2  Connor  &  Lawson  344), 
was  very  clear  in  the  explanation  of  this: 
"  It  is  said  that  in  the  present  case,  this  is 
not  a  contingent  remainder,  but  a  future, 
or  secondary,  or  springing  use,  and  being 
to  take  effect  in  default  of  issue  generally, 
it  is  too  remote,  and  therefore  void.  Now, 
if  there  be  one  rule  of  law  more  sacred 
than  another,  it  is  this,  that  no  limitation 
shall  be  construed  to  be  an  executory  or 
shifting  use,  which  can  by  possibility  take 
17 


effect  by  way  of  remainder,  and  the  cause 
of  Carwadine  v.   Carwadine,   1   Eden   27, 
explained  in  the  note  to  Gilbert  on  Uses 
173,    establishes    this    position.     In    that 
case,  Lord  Keeper  Henley  went  much  out 
of  his  way  to  apply  the  rule|;  he  trans- 
posed the  proviso,  and  put  the  gift  in  a 
regular  course  of  limitation,  in  order  to 
give  effect  to  it  as  a  contingent  remainder; 
he    laid    down    the    general    rule    in    the 
strongest  terms,  and  with  precision,  and  I 
consider  the  rule  to  be  one  of  universal 
application.     As    to    the    question   of  re- 
moteness, at  this  time  of  day  I  was  very 
much   surprised  to  hear  it  pressed  upon 
the    court,    because    it   is   now    perfectly 
settled  that  where  a  limitation  is  to  take 
effect  as  a  remainder,  remoteness  is  out  of 
the  question  ;  for  the  given  limitation  is 
either  a  vested  remainder,  and  then  it  mat- 
ters not  whether  it  ever  vest  in  possession 
because  the  previous  estate  may  subsist 
for  centuries,  or  for  all  time  ;   or  it  is  a 
contingent   remainder,   and  then,  by  the 
rule  of  law,  unless  the  event  upon  which 
the   contingency  depends  happen  so  that 
the  remainder  may  vest  to  instanti,  the  pre- 
ceding limitation  determines,  it  can  never 
take   effect   at   all.      There   was   a   great 
difficulty  in  the  old  law,  because  the  rule 
as  to  perpetuity,  which  is  a  comparatively 
modern  rule  (I  mean  of  recent  introduction, 
when  speaking  of  the  laws  of  this  country), 
was  not  known,  so  that,  while  contingent 
remainders  were  the  only  species  of  ex- 
ecutory estates  then  known,  and  uses,  and 
springing,   and   shifting   limitations  were 
not     invented,     the     law    did     speak    of 
remoteness   and  mere   possibilities  as  an 
objection  to  a  remainder,  and  endeavored 
to  avoid  remote  possibilities  ;  but  since  the 
establishment  of  the  rule  as  to  perpetui- 
ties, this  has  long  ceased,  and  no  question 
now  ever  arises  with  reference  to  remote- 
ness ;  for  if  a  limitation  is  to  take  effect 
as  a  springing,  shifting,  or  secondary  use, 


274 


OF  INCORPOREAL  HEREDITAMENTS. 


■within  due  bounds,  and  prevented  from  keeping  the  lands  which  are  sub- 
ject to  them,  for  too  long  a  period  beyond  the  reach  of  alienation.  This 
rule  is  the  second  rule,  to  'which  we  have  referred, (J)  and  is  as  follows : 

(l)  Ante,  p.  269. 


not  depending  on  an  estate  tail,  and  if  it 
is  so  limited  that  it  may  go  beyond  a  life 
or  lives  in  being,  and  twenty-one  years, 
and  a  few  months,  equal  to  gestation,  then 
it  is  absolutely  void  ;  but  if,  on  the  other 
hand,  it  is  a  remainder,  it  must  take  effect, 
if  at  all,  upon  the  determination  of  the 
preceding  estate.  In  the  latter  case,  the 
event  may  or  may  not  happen  before,  or 
at,  the  instant  the  preceding  estate  is 
determined,  and  the  limitation  will  fail,  or 
not,  according  to  that  event.  It  may  thus 
be  prevented  from  taking  effect,  but  it  can 
never  lead  to  remoteness.  That  objection, 
therefore,  cannot  be  sustained  against  the 
validity  of  a  contingent  remainder.  If 
the  remainder  over  had  been  regularly  in 
default  of  issue  male  of  the  daughters,  it 
would  have  taken  effect  when  and  if  that 
failure  happened.  Now  the  remainder 
over  is  in  default  of  issue  generally  ;  but 
it  can  only  take  effect  when  and  if  there 
is  a  failue  of  issue  male,  that  is,  upon 
the  regular  determination  of  the  previous 
estate :  there  is  no  distinction  in  point  of 
perpetuity  between  the  limitations  ;  either 
can  only  take  effect  at  the  same  period. 
The  simple  distinction  is,  that  although 
the  event  happen,  the  latter  gift — depend- 
ing upon  the  contingency  —  may  never 
take  effect ;  but  that  introduces  no  ques- 
tion of  remoteness.  What  other  objection, 
then,  can  be  taken  to  this  contingent  re- 
mainder ?  This  limitation  appears  to  me 
to  be  one  of  the  most  regular,  technical, 
contingent  remainders  that  can  be  con- 
ceived. The  estate  is  first  limited  to  the 
daughters  for  their  respective  lives,  with 
remainder  to  their  sons  in  tail  male,  with 
remainder  to  the  daughters  of  the 
daughters  in  tail  general  ;  and  then,  if 
the  daughters  die  without  issue,  remain- 
der over.  What  can  be  more  regular  ? 
If  the  remainder  over  takes  effect  at  all,  it 
must   take   effect   immediately   upon   the 


natural  determination  of  the  preceding 
estates  ;  for  if  at  the  time  of  failure  of 
issue  male  of  the  daughters,  there  should 
also  be  a  failure  generally  of  their  issue, 
then  the  preceding  limitations  are  sub- 
sisting up  to  the  time  at  which  the  con- 
tingent remainder  over  is  limited  to  take 
effect,  and  are  only  exhausted  at  that  mo- 
ment;  and  supposingthatasthe  determina- 
tion of  those  preceding  limitations,  there 
are  other  issue  of  the  daughters — issue 
female  of  their  sons,  for  instance,  who  do 
not  take  estates  under  those  preceding 
limitations,  then  the  contingency  does 
not  happen  upon  which  the  remainder 
was  to  take  effect,  although  the  preceding 
estates  are  determined,  and  the  remainder 
over  is  consequently  destroyed.  *  *  * 
The  first  instance  of  Mr.  Fearne  is  taken 
from  Coke  Littleton  378  a;  and  the  passage 
shows  there  was  then  a  difficulty  about 
remote  possibilities,  which  does  not  exist 
at  this  moment.  Lord  Coke,  speaking  of 
this,  says  :  '  So  it  is  if  a  man  make  a  lease 
for  life  to  A.,  B.,  and  C,  and  if  B.  survive 
C.  then  the  remainder  to  B.  and  his  heirs  : 
here  is  another  exception  out  of  the  said 
rule,  for  albeit  the  person  be  certain,  yet 
inasmuch  as  it  depends  upon  the  dying  of- 

B.  before  C,  the  remainder  cannot  vest  in 

C.  presently  ;  and  the  reason  of  both  these 
cases  in  effect  is,  because  the  remainder  is 
to  commence  upon  limitation  of  time,  viz., 
upon  the  possibilitie  of  the  death  of  one 
man  before  another,  which  is  a  common 
possibilitie.'  The  concluding  words  show 
that  in  those  early  times  they  were  looking 
to  the  period  when  the  contingency  might 
arise.  The  effect,  however,  of  the  modern 
rule  against  perpetuities  has  been  to  render 
this  doctrine  obsolete,  although  it  has  ren- 
dered void  successive  life  estates  to  succes- 
sive unborn  classes  of  issue.  In  Nicholls 
v.  Sheffield,  2  Bro.  Ch.  C.  215,  the  court 
held  that  a  proviso  for  shifting  an  estate 


OF   A   CONTINGENT    REMAINDER. 


274 


that  an  estate  cannot  be  given  to  an  unborn  person  for  life,  followed  by 
any  estate  to  any  child  of  such  unborn  person  ;{m)  for  in  such  a  case  the 

(m)  2  Cases  and  Opinions  432-441  ;  Hay  v.  Earl  of  Coventry,  3  T.  Rep.  86  ;  Brude- 
nell  v.  Elwes,  1  East  452  ;  Fearne's  Posthuma  215  ;  Fearne,  Cont.  Rem.  502,  565,  Butl. 
note;  2  Prest.  Abst.  114;  1  Sugd.  Pow.  470;  393,  8th  ed. ;  1  Jarm.  Wills  221,  1st  ed. ; 
203,  2d  ed. ;  227,  3d  ed. ;  Cole  v.  Sewell,  2  H.  of  L.  Cases  186;  Monypenny  v.  Dering, 
2  De  Gex,  M.  &  G.  145,  170;  Sugden  on  Property  120;  Sugden  on  the  Real  Property 
Statutes,  p.  285,  n.  (a),  1st  ed. ;  274,  n.  (a),  2d  ed.  See,  however,  per  Wood,  V.-C,  in 
Cattlin  v.  Brown,  11  Hare  375,  qy? 


after  an  estate  tail  was  valid  ;  and  Lord 
Kenyon,  who  was  then  at  the  Rolls,  would 
not  listen  to  an  argument  founded  on 
remoteness  because  the  limitation  over 
might  at  any  time  be  barred  by  the  pre- 
vious tenant  in  tail." 

When  this  case  came  before  the  House 
of  Lords  on  appeal  (2  Clark  &  Finnelly's 
Appeal  Cases  N.  S.  230),  Lord  Brougham, 
in  delivering  his  judgment,  said,  "  On  look- 
ing at  the  learned  and  able  arguments  in 
the  court  below,  as  reported,  which  I  have 
read  carefully,  I  was  a  good  deal  surprised 
to  find  that  there  was  a  question  raised 
about  the  remoteness  of  the  limitations. 
Now  whatever  doubt  may  have  arisen  in  the 
earlier  periods  of  the  learning  of  the  law 
of  contingent  uses,  whatever  confusion  of 
expression,  perhaps  rather  than  of  sub- 
stance, may  be  found  in  the  reports,  giving 
rise  to  an  impression  that  there  is  in  such 
a  case  a  rule  similar  to  the  rule  with  re- 
spect to  perpetuities  in  the  case  of  spring- 
ing uses  and  executory  devises,  which  on 
account  of  the  law  respecting  perpetuities 
may  be  too  remote, — whatever  difficulty, 
confusion,  or  doubt  may  have  arisen  in 
earlier  cases  as  to  this,  I  am  quite  confident 
that  for  upwards  of  a  hundred  years  the 
rule  has  been  settled,  as  will  be  clearly 
seen  if  you  search  through  the  authorities. 
I  have  been  led  to  do  so  from  the  curiosity 
of  the  case,  and  from  seeing  that  the 
learned  gentlemen,  particularly  Mr.  Ser- 
jeant Warren,  who  argued  this  case  below, 
raised  the  point,  and  therefore  we  would 
suppose  that  there  must  be  some  founda- 
tion for  it ;  I  wished,  therefore,  to  trace 
what  that  foundation  was,  because  it 
opened  to  my  mind  a  new  and  a  strange 


view  of  the  law,  applying  that  to  contin- 
gent remainders  which  I  had  always 
understood  must  be,  from  the  very  nature 
of  the  thing,  confined  to  springing  uses 
and  executory  devises;  and  why?  In  the 
case  of  a  contingent  remainder,  if  the 
limitation  is  to  operate  by  way  of  remain- 
der, it  must  be  supported  by  a  preceding 
particular  estate  of  freehold,  an  estate  for 
life,  or  an  estate  tail,  and  it  is  absolutely 
useless  unless  it  is  to  take  effect  eo  instanti 
that  the  preceding  estate  determines  :  that 
is  the  very  nature  of  it,  the  bond  of  the 
existence,  if  I  may  so  speak,  of  a  contin- 
gent remainder.  But  then,  if  I  have  an 
estate  limited  upon  a  fee  [simple],  that  is 
to  say,  an  estate  to  A.  and  his  heirs,  and 
upon  the  determination  of  that  estate  in 
fee,  that  is,  when  the  heirs  shall  cease, 
then  over, — that  cannot  operate  by  way  of 
remainder ;  it  is  quite  clear  that  that  is 
void  as  a  remainder,  and  it  is  quite  clear 
that  if  that  is  to  take  effect  by  way  of  ex- 
ecutory devise  or  springing  use  (the  only 
way  in  which  it  can  take  effect),  there  is 
no  end  of  it.  It  may  be  a  perpetuity  to  all 
intents  and  purposes,  because  if  the  fee  is 
first  limited  to  A.  and  his  heirs,  then,  as 
long  as  there  are  heirs,  the  contingent 
use,  the  springing  use,  or,  in  the  case  of  a 
will,  the  executory  devise,  cannot  come 
into  possession,  cannot  exist,  and  cannot 
be  available  ;  consequently,  there  might 
be  a  perpetuity  created  from  the  condition 
of  a  former  use  not  coming  into  esse,  that 
condition  being  the  general  failure  of 
heirs.  What  is  the  consequence  then? 
That  the  law  has  said,  '  to  prevent  the 
possibility  of  this  perpetuity,  we  will  fix 
certain  bounds,  beyond  which  the  limita- 


274  OF    INCORPOREAL   HEREDITAMENTS. 

estate  given  to  the  child  of  the  unborn  person  is  void.  This  rule  is  ap- 
parently derived  from  the  old  doctrine  which  prohibited  double  possi- 
bilities. It  may  not  be  sufficient  to  restrain  every  kind  of  settlement 
which  ingenuity  might  suggest ;  but  it  is  directly  opposed  to  the 'great 
motive  which  usually  induces  attempts  at  a  perpetuity,  namely,  the 
desire  of  keeping  an  estate  in  the  same  family;  and  it  has  accordingly 
r^.^-y  Deen  hitherto  found  sufficient.  An  *attempt  has  been  made, 
L  -•  with  much  ability,  to  explain  away  this  rule  as  merely  an 
instance  of  the  rule  by  which,  as  we  shall  hereafter  see,  executory  in- 
terests are  restrained. (n)  But  this  rule  is  more  stringent  than  that 
which  confines  executory  interests ;  and  if  there  were  no  other  restraint 
on  the  creation  of  contingent  remainders  than  the  rule  by  which  execu- 
tory interests  are  confined,  landed  property  might  in  many  cases  be  tied 
up  for  at  least  a  generation  further  than  is  now  possible.(o) 

The  opinion  which  so  generally  prevails,  that  every  man  may  make 
what  disposition  he  pleases  of  his  own  estate, — an  opinion  countenanced 
by  the  loose  description  sometimes  given  by  lawyers  of  an  estate  in  fee 
simple,(p) — has  not  unfrequently  given  rise  to  attempts  made  by  testators 
to  settle  their  property  on  future  generations  beyond  the  bounds  allowed 

(n)  See  Lewis  on  Perpetuities,  p.  408  et  seq.  The  case  of  Challis  v.  Doe  d.  Evers,  18 
Q.  B.  231  (E.  C.  L.  R.  vol.  83),  must  be  admitted  to  accord  with  this  opinion  ;  but  the 
point,  though  adverted  to  by  the  counsel  for  the  appellant,  was  not  taken  by  the  coun- 
sel for  the  respondent,  nor  mentioned  in  the  judgment  of  the  court.  This  case  has 
since  been  reversed  in  the  House  of  Lords,  7  H.  of  L.  Cas.  531. 

(o)  See  Appendix  (F).  (p)  2  Black.  Com.  104. 

tion  shall  not  take  effect.'  Therefore  there  the  life  of  B.  *  *  *  But  this  is  not  the 
may  be  an  estate  given  to  A.  and  his  heirs  ;  case  of  an  executory  devise  in  which  any 
that  is  a  fee  ;  but  you  cannot  limit  a  re-  argument  against  perpetuity  on  the  ground 
mainder  upon  that.  If  you  give  an  estate  of  remoteness  can  be  raised,  and  the 
to  A.  and  his  heirs,  and  for  want  of  such  doctrine  of  remoteness  has  been  therefore, 
issue,  or  if  A.  shall  die  without  heirs  I  think,  most  erroneously  imported  into 
during  the  life  of  B.,  then  over,  that  will  this  case,  with  which  it  can  have  nothing 
do,  that  will  operate  by  way  of  springing  whatever  to  do,  because  it  cannot  be  an 
use  or  executory  devise,  because  the  life  executory  devise,  if  it  can  operate  by  way 
of  B.  limits  the  period  during  which  that  of  contingent  remainder  ;  and  there  can- 
shall  be  held  in  suspenso,  and  that  is  the  not  be  remoteness  created  here,  because 
origin  of  the  rule.  In  the  same  way,  I  the  preceding  estates  tail  are  all  barable ; 
will  take  the  ordinary  case  of  a  fee  limited  at  all  events,  you  have  the  most  perfect 
upon  a  fee,  that  is,  a  fee  to  come  into  use,  security  against  perpetuity  ever  creeping 
to  come  into  possession  upon  the  deter-  into  it,  because  if  it  is  a  contingent  re- 
mination  of  the  estate  of  A.  and  his  heirs,  mainder,  it  must  take  effect  on  being  bar- 
living  B. ;  that  prevents  the  perpetuity,  able,  and  it  is  gone  forever  eo  instanli  that 
because  it  limits  the  period  to  dying  during  the  particular  estate  arises."  R. 


OF   A    CONTINGENT   REMAINDER.  275 

by  law ;  thus  lands  have  been  given  by  will  to  the  unborn  son  of  some 
living  person  for  his  life,  and  after  the  decease  of  such  unborn  son,  to 
his  sons  in  tail.  This  last  limitation  to  the  sons  of  the  unborn  son  in 
tail,  we  have  observed,  is  void.  The  courts  of  law,  however,  have  been 
so  indulgent  to  the  ignorance  of  testators,  that,  in  the  case  of  a  will, 
they  have  endeavored  to  carry  the  intention  of  the  testator  into  effect, 
as  nearly  as  can  possibly  be  done,  without  infringing  the  rule  of  law  ; 
they,  accordingly,  take  the  liberty  of  altering  his  will  to  what  they  pre- 
sume he  would  have  done  had  he  been  acquainted  with  the  rule  which 
prohibits  the  son  of  any  unborn  son  from  being,  in  such  circumstances, 
the  *object  of  a  gift.  This,  in  Law  French,  is  called  the  cy  pres  r*97f -i 
doctrine.^)1  From  what  has  already  been  said,  it  will  be  appa- 
rent that  the  utmost  that  can  be  legally  accomplished  towards  securing  an 
estate  in  a  family  is  to  give  to  the  unborn  sons  of  a  living  person  estates 
in  tail :  such  estates,  if  not  barred,  will  descend  on  the  next  generation  ; 
but  the  risk  of  the  entails  being  barred  cannot,  by  any  means,  be  pre- 
vented. The  courts,  therefore,  when  they  meet  with  such  a  disposition 
as  above  described,  instead  of  confining  the  unborn  son  of  the  living 
person  to  the  mere  life  estate  given  him  by  the  terms  of  the  will,  and 
annulling  the  subsequent  limitations  to  his  offspring,  give  to  such  son  an 
estate  in  tail,  so  as  to  afford  to  his  issue  a  chance  of  inheriting,  should 
the  entail  remain  unbarred.2  But  this  doctrine,  being  rather  a  stretch 
of  judicial  authority,  is  only  applied  where  the  estates  given  by  the  will 
to  the  children  of  the  unborn  child  are  estates  in  tail,  and  not  where 
they  are  estates  for  life,(r)  or  in  fee  simple.(s)  If,  however,  the  estates 
be  in  tail,  the  rule  equally  applies,  whether  the  estates  tail  be  given  to 
the  sons  successively  according  to  seniority,  or  to  all  the  children  equally 
as  tenants  in  common. (t) 

Though  a  contingent  remainder  is  an  estate  which,  if  it  arise,  must 

(q)  Fearne,  Cont.  Rem.  204,  note  ;  1  Jarman  on  Wills  260,  1st  ed.;  242,  2d  ed.;  278, 
3d  ed. ;  Vanderplank  v.  King,  3  Hare  1  ;  Monypenny  v.  Dering,  16  Mee.  &  Wels.  418  ; 
Hampton  v.  Holman,  L.  R.  5  Ch.  Div.  183. 

(r)  Seaward  v.  Willcock,  5  East  198.  See,  however,  per  Rolt,  L.  J.,  in  Forsbrook  v. 
Forsbrook,  L.  R.  3  Ch.  93,  99 ;  and  per  Jessel,  M.  R.,  in  Hampton  v.  Holman,  L.  R.  5 
Ch.  Div.  183,  193. 

(s)  Bristow  v.  Ward,  2  Ves.  jun.  336 ;   Hale  v.  Pew,  25  Beav.  335. 

(()  Pitt  v.  Jackson,  2  Bro.  C.  C.  51  ;  Vanderplank  v.  King,  3  Hare  1. 

1  The  doctrine,  however,  has  not  been  2  Allyn  v.  Mather,  9  Connect.  114;  Jack- 
extended  to  limitations  in  a  deed.     See  son  v.  Brown,  13  Wendell  437  ;    and  see 
Third    Report    of    Real    Property    Com-  notes  to  page  215,  ante.                          R. 
missioners  30.                                          R. 


276  OF   INCORPOREAL   HEREDITAMENTS. 

arise  at  a  future  time,  and  will  then  belong  to  some  future  owner,  yet 
the  contingency  may  be  of  such  a  kind  that  the  future  expectant  owner 
r^.077-1  may  *De  now  living.  For  instance,  suppose  that  a  conveyance 
■-  J  be  made  to  A.  for  his  life,  and  if  C.  be  living  at  his  decease, 
then  to  B.  and  his  heirs.  Here  is  a  contingent  remainder,  of  which  the 
future  expectant  owner,  B.,  may  be  now  living.  The  estate  of  B.  is  not 
a  present  vested  estate,  kept  out  of  possession  only  by  A.'s  prior  right 
thereto.  But  it  is  a  future  estate,  not  to  commence,  either  in  possession 
or  in  interest,  till  A.'s  decease.  It  is  not  such  an  estate  as,  according 
to  our  definition  of  a  vested  remainder,  is  always  ready  to  come  into  pos- 
session whenever  A.'s  estate  may  end;  for,  if  A.  should  die  after  C,  B. 
or  his  heirs  can  take  nothing.  Still  B.,  though  he  has  no  estate  during 
A.'s  life,  has  yet  plainly  a  chance  of  obtaining  one,  in  case  C.  should 
survive.  This  chance  in  law  is  called  a  'possibility  ;  and  a  possibility  of 
this  kind  was  long  looked  upon  in  much  the  same  light  as  a  condition  of 
re-entry  was  regarded,(w)  having  been  inalienable  at  law,  and  not  to  be 
conveyed  to  another  by  deed  of  grant.  A  fine  alone,  before  fines  were 
abolished,  could  effectually  have  barred  a  contingent  remainder. (:r)  It 
might,  however,  have  been  released ;  that  is  to  say,  B.  might,  by  deed 
of  release,  have  given  up  his  interest  for  the  benefit  of  the  reversioner, 
in  the  same  manner  as  if  the  contingent  remainder  to  him  and  his  heirs 
had  never  been  limited ;(«/)  for  the  law,  whilst  it  tolerated  conditions  of 
re-entry  and  contingent  remainders,  always  gladly  permitted  such  rights 
to  be  got  rid  of  by  release,  for  the  sake  of  preserving  unimpaired  such 
vested  estates  as  might  happen  to  be  subsisting.  A  contingent  re- 
mainder was  also  devisable  by  will  under  the  old  statutes,(z)  and  is  so 
9  *under  the  present  act  for  the  amendment  of  the  laws  with 

L  J  respect  to  wills. (a)  And  it  was  the  rule  in  equity  that  an 
assignment  intended  to  be  made  of  a  possibility  for  a  valuable  considera- 
tion  should  be   decreed   to   be   carried   into    effect.^)1      But   the   act 

(u)  Ante,  p.  246. 

(z)  Fearne,  Cont.  Rem.  365  ;  Helps  v.  Hereford,  2  Barn.  &  Aid.  242  ;  Doe  d.  Christ- 
mas v.  Oliver,  10  Barn  &  Cress.  181  (E.  C.  L.  R.  vol.  21)  ;  Doe  d.  Lumley  v.  Earl  of 
Scarborough,  3  Adol.  &  Ell.  2  (E.  C.  L.  R.  vol.  30). 

(y)  Lampet's  Case,  10  Rep.  48  a,  b  ;  Marks  v.  Marks,  1  Strange  132. 

(2)  Roe  d.  Perry  v.  Jones,  1  H.  Black.  30  ;  Fearne,  Cont.  Rem.  366,  note. 

(a)  Stat.  1  Will.  IV.  &  1  Vict.  c.  26,  s.  3  ;  Ingilby  v.  Amcotts,  21  Beav.  585. 

(b)  Fearne,  Cont.  Rem.  550,  551  ;  see,  however,  Carleton  v.  Leighton,  3  Meriv.  66?, 
668,  note  (b). 

1  The  student  will  find  all  the  law  on  the  in  the  notes  to  Row  v.  Dawson,  3  Lead, 
subject  of  such  assignments  for  valuable  Cases  in  Equity  651  [4th  Am.  ed.,  vol.  2, 
consideration  being   supported   in  equity     p.  1531].  R. 


OF    A    CONTINGENT    REMAINDER.  278 

to  amend  the  law  of  real  property(c)  now  enacts  that  a  contingent 
interest,  and  a  possibility  coupled  with  an  interest,  in  any  tenements  or 
hereditaments  of  any  tenure,  whether  the  object  of  the  gift  or  limitation 
of  such  interest  or  possibility  be  or  be  not  ascertained,  may  be  disposed 
of  by  deed.  But  every  such  disposition,  if  made  by  a  married  woman, 
must  be  made  conformably  to  the  provisions  of  the  act  for  the  abolition 
of  fines  and  recoveries. (d) 

The  circumstance  of  a  contingent  remainder  having  been  so  long 
inalienable  at  law  was  a  curious  relict  of  the  ancient  feudal  system. 
This  system,  the  fountain  of  our  jurisprudence  as  to  landed  property, 
was  strongly  opposed  to  alienation.  Its  policy  was  to  unite  the  lord  and 
tenant  by  ties  of  mutual  interest  and  affection ;  and  nothing  could  so 
effectually  defeat  this  end  as  a  constant  change  in  the  parties  sustaining 
that  relation.  The  proper  method,  therefore,  of  explaining  our  laws,  is 
not  to  set  out  with  the  notion  that  every  subject  of  property  may  be 
aliened  at  pleasure,  and  then  to  endeavor  to  explain  why  certain  kinds 
of  property  cannot  be  aliened,  or  can  be  aliened  only  in  some  modified 
manner.  The  law  itself  began  in  another  way.  When  and  in  what 
manner  different  kinds  of  property  gradually  became  subject  to  different 
modes  of  alienation  is  the  matter  to  be  explained ;  and  this  *ex- 
planation  we  have  endeavored,  in  proceeding,  as  far  as  possible  L  -1  J 
to  give.  But,  as  to  such  interests  as  remained  inalienable,  the  reason  of 
their  being  so  was  that  they  had  not  been  altered,  but  remained  as  they 
were.  The  statute  of  Quia  emptores{e)  expressly  permitted  the  aliena- 
tion of  lands  and  tenements, — an  alienation  which  usage  had  already 
authorized;  and  ever  since  this  statute,  the  ownership  of  an  estate  in 
lands  (an  estate  tail  excepted)  has  involved  in  it  an  undoubted  power  of 
conferring  on  another  person  the  same,  or  perhaps,  more  strictly,  a  simi- 
lar estate.  But  a  contingen  tremainder  is  no  estate,  it  is  merely  a 
chance  of  having  one ;  and  the  reason  why  it  so  long  remained  inalien- 
able at  law  was  simply  because  it  had  never  been  thought  worth  while  to 
make  it  alienable. 

One  of  the  most  remarkable  incidents  of  a  contingent  remainder  was 

CD 

its  liability  to  destruction,  by  the  sudden  determination  of  the  particu- 
lar estate  upon  which  it  depended.    This  liability  has  now  been  removed 

(c)  Stat.  8  &  9  Vict.  c.  106,  s.  6. 

(d)  See  ante,  pp.  231,  232. 

(e)  18  Edw.  I.  c.  1 ;  ante,  p..  62. 


279  OF   INCORPOREAL    HEREDITAMENTS. 

by  the  act  to  amend  the  law  of  real  property ;(/)]  it  was,  in  effect,  no 
more  than   a  strict  application  of  the   general   rule,   required   to   be 
observed  in  the  creation  of  contingent   remainders,  that  the  freehold 
must  never  be  left  without  an  owner.     For  if,  after  the  determination  of 
the  particular   estate,   the  contingent   remainder   might  still,   at  some 
future  time,  have  become  a  vested  estate,  the  freehold  would,  until  such 
time,  have  remained  undisposed  of,  contrary  to  the  principles  of  the  law 
before  explained.(^)     Thus,  suppose  lands  to  have  been  given  to  A.,  a 
bachelor,  for  his  life,  and  after  his  decease  to  his  eldest  son  and  the  heirs 
of  his  body,  and  in  default  of  such  issue,  to  B.  and  his  heirs.     In  this 
r*9«m    CaSe  ^"  wou^  nave  nac^  a  vested  estate  for  his  life  in  *possession. 
J    There  would  have  been  a  contingent  remainder  in  tail  to  his 
eldest  son,  which  would  have  become  a  vested  estate  tail  in  such  son  the 
moment  he  was  born,  or  rather  begotten  ;  and  B.  would  have  had   a 
vested  estate  in  fee  simple  in  remainder.     Now  suppose  that,  before  A. 
had  any  son,  the  particular  estate  for  life  belonging  to  A.,  which  sup- 
ported the  contingent  remainder  to  his  eldest  son,  should  suddenly  have 
determined  during  A.'s  life,  B.'s  estate  would  then  have  become  an 
estate  in  fee  simple  in  possession.     There  must  be  some  owner  of  the 
freehold ;  and  B.,  being  next   entitled,  would  have   taken    possession. 
When  his  estate  once  became  an  estate  in  possession,  the  prior  remainder 
to  the  eldest  son  of  A.  was  forever  excluded.     For,  by  the  terms  of  the 
gift,  if  the  estate  of  the  eldest  son  was  to  come  into  possession  at  all,  it 
must  have  come  in  before  the  estate  of  B.     A  forfeiture  by  A.  of  his 
life  estate,  before  the  birth  of  a  son,  would  therefore  at  once  have  de- 
stroyed the  contingent  remainder,  by  letting  into  possession  the  sub- 
sequent estate  of  B.(/i) 

The  determination  of  the  estate  of  A.  was,  hoAvever,  in  order  to  effect 
the  destruction  of  the  contingent  remainder,  required  to  be  such  a  de- 
termination as  would  put  an  end  to  his  right  to  the  freehold  or  feudal 
possession.     Thus,  if  A.  had  been  forcibly  ejected  from  the  lands,  his 

(/)  Stat.  8  &  9  Vict.  c.  106,  s.  8,  repealing  stat.  7  &  8  Vict.  c.  76,  s.  8,  to  the  same 
effect. 

(g)  Ante,  p.  269. 

(h)  Fearne,  Cont.  Rem.  317  ;  see  Doe  d.  Davies  v.  Gatacre,  5  Bing.  N.  C.  609  (E.  C. 
L.  R.  vol.  35). 


1  Such  has  also  been  the  effect  of  the  The  statute  laws  of  Kentucky,  Texas, 

Revised  Statutes  of  Maine,  Massachusetts,  Virginia,  Michigan,  Minnesota,  and  Wis- 

New  York,  Indiana,  and  Missouri,  2  Greenl.  consin,  are  to  the  same  effect.     2  Washb. 

Cruise  270  n.                                            R.  Real  Prop.  (4th  ed.)  594. 


OF   A    CONTINGENT    REMAINDER.  280 

right  of  entry  would  still  have  been  sufficient  to  preserve  the  contin- 
gent remainder ;  and  if  he  should  have  died  whilst  so  out  of  possession, 
the  contingent  remainder  might  still  have  taken  effect.  For,  so  long  as 
A.'s  feudal  possession,  or  his  right  thereto,  continues,  so  long,  in  the  eve 
of  the  law,  does  his  estate  last.(z') 

*It  is  a  rule  of  law  that  "  whenever  a  greater  estate  and  a  less  r*9gll 
coincide  and  meet  in  one  and  the  same  person,  without  any  in- 
termediate estate,  the  less  is  immediately  annihilated;  or,  in  the  law 
phrase,  is  said  to  be  merged,  that  is,  sunk  or  drowned,  in  the  greater. "(k) 
From  the  operation  of  this  rule,  an  estate  tail  is  preserved  by  the  effect 
of  the  statute  Be  donis.(l)  Thus,  the  same  person  may  have,  at  the  same 
time,  an  estate  tail,  and  also  the  immediate  remainder  or  reversion  in  fee 
simple,  expectant  on  the  determination  of  such  estate  tail,  by  failure  of 
his  own  issue.  But  with  regard  to  other  estates,  the  larger  will  swallow 
up  the  smaller ;  and  the  intervention  of  a  contingent  remainder  which, 
while  contingent,  is  not  an  estate,  will  not  prevent  the  application  of  the 
rule.  Accordingly,  if  in  the  case  above  given  A.  should  have  purchased 
B.'s  remainder  in  fee,  and  should  have  obtained  a  conveyance  of  it  to 
himself,  before  the  birth  of  a  son,  the  contingent  remainder  to  his  son 
would  have  been  destroyed.  For,  in  such  a  case,  A.  would  have  had  an 
estate  for  his  own  life,  and  also,  by  his  purchase,  an  immediate  vested 
estate  in  fee  simple  in  remainder  expectant  on  his  own  decease  ;  there 
being,  therefore,  no  vested  estate  intervening,  a  merger  would  have  taken 
place  of  the  life  estate  in  the  remainder  in  fee.  The  possession  of  the 
estate  in  fee  simple  would  have  been  accelerated  and  would  have  imme- 
diately taken  place,  and  thus  a  destruction  would  have  been  effected  of 
the  contingent  remainder,(wi)  which  could  never  afterwards  have  become 
a  vested  estate ;  for,  were  it  to  have  become  vested,  it  must  have  taken 
possession  subsequently  to  the  remainder  in  fee  simple ;  but  this  it  could 
not  do,  both  by  the  terms  of  the  gift,  and  also  by  the  very  nature  of  a 
remainder  in  fee  simple,  which  can  never  have  a  remainder  after  it.  In 
the  same  manner  *the  sale  by  A.  to  B.  of  the  life  estate  of  A.,  r*oo9-i 
called  in  law  a  surrender  of  the  life  estate,  before  the  birth  of 
a  son,  would  have  accelerated  the  possession  of  the  remainder  in  fee  sim- 
ple, by  giving  to  B.  an  uninterrupted  estate  in  fee  simple  in  possession  ; 
and  the  contingent  remainder  would  consequently  have  been  destroyed.(w) 
The  same  effect  would  have  been  produced  by  A.  and  B.  both  conveying 

(i)  Fearne,  Cont.  Rem.  286.  (k)  2  Black.  Com,  111. 

(I)  Stat.  13  Edw.  I.  c.  1 ;  ante,  p.  43.  (m)  Fearne,  Cont.  Rem.  340. 

(n)  Fearne,  Cont.  Rem.  318. 


282  OF    INCORPOREAL    HEREDITAMENTS. 

their  estates  to  a  third  person,  C,  before  the  birth  of  a  son  of  A.  The 
only  estates  then  existing  in  the  land  would  have  been  the  life  estate  of 
A.  and  the  remainder  in  fee  of  B.  C,  therefore,  by  acquiring  both 
these  estates,  would  have  obtained  an  estate  in  fee  simple  in  possession, 
on  which  no  remainder  could  depend. (o)  But  now,  the  act  to  amend  the 
law  of  real  propertyfj?)  has  altered  the  law  in  all  these  cases  ;  for,  whilst 
the  principles  of  law  on  which  they  proceeded  have  not  been  expressly 
abolished,  it  is  nevertheless  enacted^)  that  a  contingent  remainder  shall 
be,  and  if  created  before  the  passing  of  the  act  shall  be  deemed  to  have 
been,  capable  of  taking  effect,  notwithstanding  the  determination  by 
forfeiture,  surrender,  or  merger  of  any  preceding  estate  of  freehold,  in  the 
same  manner  in  all  respects  as  if  such  determination  had  not  happened. 
This  act,  it  will  be  observed,  applies  only  to  the  three  cases  of  forfeiture, 
surrender,  or  merger  of  the  particular  estate.  If,  at  the  time  when  the 
particular  estate  would  naturally  have  expired,  the  contingent  remainder 
be  not  ready  to  come  into  immediate  possession,  it  will  still  fail  as 
before,(r)  except  in  the  cases  provided  for  by  the  recent  act  to  amend 
the  law  as  to  contingent  remainders. (s) 

P^noo-i  *The  disastrous  consequences  which  would  have  resulted  from 
the  destruction  of  the  contingent  remainder,  in  such  a  case  as 
that  we  have  just  given,  were  obviated  in  practice  by  means  of  the  inter- 
position of  a  vested  estate  between  the  estates  of  A.  and  B.  We  have 
seen(t)  that  an  estate  for  the  life  of  A.,  to  take  effect  in  possession  after 
the  determination,  by  forfeiture  or  otherwise,  of  A.'s  life  interest,  is  not 
a  contingent,  but  a  vested  estate  in  remainder.  It  is  a  present  existing 
estate,  always  ready,  so  long  as  it  lasts,  to  come  into  possession  the 
moment  the  prior  estate  determines.  The  plan,  therefore,  adopted  for 
the  preservation  of  contingent  remainders  to  the  children  of  a  tenant  for 
life  was  to  give  an  estate,  after  the  determination  by  any  means  of  the 
tenant's  life  interest,  to  certain  persons  and  their  heirs  during  his  life, 
as  trustees  for  preserving  the  contingent  remainders  ;  for  which  purpose 
they  were  to  enter  on  the  premises,  should  occasion  require,  but  should 
such  entry  be  necessary,  they  were  nevertheless  to  permit  the  tenant  for 

'  (o)  Fearne,  Cont.  Rem.  322,  note;  Noel  v.  Bewley,  3  Sim.  103  ;  Egerton  v.  Massey,  3 
C.  B.  N.  S.  338  (E.  C.  L.  R.  vol.  91). 

(p)  Stat.  8  &  9  Vict.  c.  106,  repealing  stat.  7  &  8  Vict.  c.  76,  s.  8,  to  the  same  effect. 

(q)  Sect.  8. 

(r)  Price  v.  Hall,  L.  R.  5  Eq.  399 ;  Perceval  v.  Perceval,  L.  R.  9  Eq.  386. 

(s)  Stat.  40  &  41  Vict.  c.  33  ;  ante,  pp.  271,  272. 

(t)  Ante,  p.  268. 


OF    A    CONTINGENT    REMAINDER. 


283 


life  to  receive  the  rents  and  profits  during  the  rest  of  his  life.  These 
trustees  were  prevented  by  the  Court  of  Chancery  from  parting  with  their 
estate,  or  in  any  way  aiding  the  destruction  of  the  contingent  remainders 
which' their  estate  supported,  (m)1    And,  so  long  as  their  estate  continued, 

(m)  Fearne,  Cont.  Rem.  326. 


1  In  Biscoe  v.  Perkins,  1  Vesey  &  Beanies 
491,  Lord  Eldon,  in  considering  the  ques- 
tion how  far  equity  would  interfere  to  reg- 
ulate the  conduct  of  trustees  to  preserve 
contingent    remainders,   said,    "  With    all 
these  cases  upon  the  duties  and  liabilities 
of  trustees  to  preserve  contingent  remain- 
ders, I  find  myself  under   circumstances 
very  trying  to  a  judge  ;  as  the  task  of  de- 
ducing from  them  what  is  the  true  princi- 
ple is  greater  than  I  have  abitities  well  to 
execute.     The  cases  are  uniform  to  this 
extent :   that  if  trustees,  before  the  first 
tenant  in  tail  is  of  age,  join  in  destroying 
the  remainders,  they  are  liable  for  a  breach 
of  trust,  and  so  is  every  purchaser  under 
them  with  notice ;  but  when  we  come  to 
the   situation  of  trustees  to  preserve  re- 
mainders, who  have  joined  in  a  recovery, 
after  the  first  tenant  in  tail  is  of  age,  it  is 
difficult  to  say  more  than  that  no  judge  in 
equity   has    gone   the  length   of  holding 
that  he  would  punish  them  as  for  a  breach 
of  trust,  even  in  a  case  where  they  would 
not  have  been  directed  to  join.     The  re- 
sult is  that  they  seem  to  have  laid  down, 
as  the  safest  rule  for  trustees,  but  certainly 
most  inconvenient  for  the  general  interests 
of  mankind,  that  it  is  better  for  trustees 
never  to  destroy  the   remainders,  even  if 
the  tenant  in  tail  of  age  concurs,  without 
the  direction  of  the  court.     The  next  con- 
sideration is,  in  what  cases  the  court  will 
direct  them   to  join  ;    and  if  I  am  to  be 
governed  by  what  my  predecessors  have 
done,   and  have  refused  to  do,  I   cannot 
collect,  in  what  cases  trustees  would,  and 
would  not,  be  directed  to  join  ;  as  it  re- 
quires  more   abilities   than  I   possess   to 
reconcile  the  different  cases  with  reference 
to  that  question.    They  all,  however,  agree 
that  these  trustees  are  honorary  trustees ; 
that  they  cannot  be  compelled  to  join  ;  and 
all   the   judges   protect   themselves   from 


saying  that,  if  they  had  joined,  they 
should  be  punished;  always  assuming 
that  the  tenant  in  tail  must  be  twenty-one. 
"  If  this  is  to  turn  upon  the  settlement 
afterwards  made,  it  was  not  improper  un- 
der all  the  circumstances,  and  the  very 
peculiar  limitations  of  this  will.  Therefore 
looking  at  this  settlement,  and  the  act 
having  been  done,  even  if,  according  to 
my  predecessors,  I  should  not  have  di- 
rected them  to  join,  I  do  not  think  I  can 
say  they  are  guilty  of  a  breach  of  trust. 
This  is  not  the  footing  upon  which  it  ought 
to  stand.  If  they  are  honorary  trustees 
to  support  contingent  remainders  for  the 
benefit  of  the  family,  the  interests  of  man- 
kind require  courts  of  justice  to  treat 
them  as  such  ;  and,  unless  violation  of  the 
trust  appears,  not  to  take  away  all  their 
discretion  ;  and  say  they  are  not  to  join, 
though  their  opinion  is  that  the  interests 
of  the  family  require  it,  without  coming 
to  a  court  of  equity  ;  the  effect  of  which 
is,  as  I  observed  in  Moody  v.  Walters,  16 
Ves.  283,  that  the  Lord  Chancellor  and  the 
Master  of  the  Rolls  are  the  trustees  of  all 
the  estates  in  the  Kingdom." 

In  some  of  the  United  States,  as  New 
York,  Delaware,  South  Carolina,  Georgia, 
Illinois,  and  Kentucky,  the  necessity  of 
trustees  to  support  contingent  remainders 
in  the  case  of  posthumous  children  is  taken 
away  by  statute:  2  Greenleaf's  Cruise  285, 
note  ;  and  in  Indiana  and  Mississippi,  no 
alienation  by  tenant  for  life  is  allowed  to 
affect  dependent  estates.  Where  no  such 
statutory  enactments  are  in  force,  it  is 
presumed  that  a  common  recovery  suffered 
by  the  tenant  for  life  will  bar  contingent 
remainders,  as  is  the  case  in  Pennsylvania : 
Dunwoodie  v.  Reed,  3  Serg.  &  Rawle  445 ; 
Toman  v.  Dunlop,-6  Harris  76,  and  was  in 
New  York  before  the  Revised  Statutes :  Van- 
derheyden  v.  Crandall,  2  Denio  9.        R. 


283  OF    INCORPOREAL    HEREDITAMENTS. 

it  is  evident  that  there  existed,  prior  to  the  birth  of  any  son,  three 
vested  estates  in  the  land ;  namely,  the  estate  of  A.  the  tenant  for  life, 
the  estate  in  remainder  of  the  trustees  during  his  life,  and  the  estate  in 
fee  simple  in  remainder,  belonging,  in  the  case  we  have  supposed,  to  B. 
and  his  heirs.  This  vested  estate  of  the  trustees,  interposed  between  the 
estates  of  A.  and  B.,  prevented  their  union,  and  consequently  prevented 
the  remainder  in  fee  simple  from  ever  coming  into  possession,  so  long  as 
the  estate  of  the  trustees  *endured,  that  is,  if  they  were  faithful 
\  J  to  their  trust,  so  long  as  A.  lived.  Provision  was  thus  made 
for  the  keeping  up  of  the  feudal  possession  until  a  son  was  born  to  take 
it;  and  the  destruction  of  the  contingent  remainder  in  his  favor  was 
accordingly  prevented.  But  now  that  contingent  remainders  can  no 
longer  be  destroyed,  of  course  there  will  be  no  occasion  for  trustees  to 
preserve  them. 

The  following  extract  from  a  modern  settlement,  of  a  date  previous 
to  the  act  to  amend  the  law  of  real  property, (v)  will  explain  the  plan 
which  used  to  be  adopted.  The  lands  were  conveyed  to  the  trustees  and 
their  heirs,  to  the  uses  declared  by  the  settlement ;  by  which  conveyance 
the  trustees  took  no  permanent  estate  at  all,  as  has  been  explained  in 
the  Chapter  on  Uses  and  Trusts,(w)  but  the  seisin  was  at  once  transferred 
to  those  to  whose  use  estates  were  limited.  Some  of  these  estates  were 
as  follows : — "  To  the  use  of  the  said  A.  and  his  assigns  for  and  during 
"  the  term  of  his  natural  life  without  impeachment  of  waste  and  from  and 
"  immediately  after  the  determination  of  that  estate  by  forfeiture  or 
"otherwise  in  the  lifetime  of  the  said  A.  To  the  use  of  the  said 
"  (trustees)  their  heirs  and  assigns  during  the  life  of  the  said  A.  In 
"  trust  to  preserve  the  contingent  uses  and  estates  hereinafter  limited 
"  from  being  defeated  or  destroyed  and  for  that  purpose  to  make  entries 
"  and  bring  actions  as  occasion  may  require  But  nevertheless  to  permit 
"  the  said  A.  and  his  assigns  to  receive  the  rents  issues  and  profits  of 
"the  said  lands  hereditaments  and  premises  during  his  life  And  from 
"  and  immediately  after  the  decease  of  the  said  A.  To  the  use  of  the 
"first  son  of  the  said  A.  and  of  the  heirs  of  the  body  of  such  first  son 
r*98_i  "lawfully  issuing  and  in  default  of  such  issue  To  the  *use  of 
L  -J  "the  second  third  fourth  fifth  and  all  and  every  other  son  and 
"  sons  of  the  said  A.  severally  successively  and  in  remainder  one  after 
"  another  as  they  shall  be  in  seniority  of  age  and  priority  of  birth  and 
"of  the  several  and  respective  heirs  of  the  body  and  bodies  of  all  and 

(v)  8  &  9  Vict.  c.  106.  (k>)  Ante,  pp.  157,  158. 


OF   A    CONTINGENT    REMAINDER.  285 

"  every  such  son  and  sons  lawfully  issuing  the  elder  of  such  sons  and 
"the  heirs  of  his  body  issuing  being  always  to  be  preferred  to  and  to 
"  take  before  the  younger  of  such  sons  and  the  heirs  of  his  and  their 
"  body  and  respective  bodies  issuing  And  in  default  of  such  issue"  &c. 
Then  follow  the  other  remainders. 

In  a  former  part  of  this  volume  we  have  spoken  of  equitable  or  trust 
estates.(a;)  In  these  cases,  the  whole  estate  at  law  belongs  to  trustees, 
who  are  accountable  in  equity  to  their  cestuis  que  trust,  the  beneficial 
owners.  As  equity  follows  the  law  in  the  limitation  of  its  estates,  so  it 
permits  an  equitable  or  trust  estate  to  be  disposed  of  by  way  of  par- 
ticular estate  and  remainder,  in  the  same  manner  as  an  estate  at  law. 
Contingent  remainders  may  also  be  limited  of  trust  estates.  But  between 
such  contingent  remainders,  and  contingent  remainders  of  estates  at  law, 
there  was  always  this  difference,  that  whilst  the  latter  were  destructible, 
the  former  were  not.(^)  The  destruction  of  a  contingent  remainder  of 
an  estate  at  law  depended,  as  we  have  seen,  on  the  ancient  feudal  rule, 
which  required  a  continuous  and  ascertained  possession  of  every  piece 
of  land  to  be  vested  in  some  freeholder.  But  in  the  case  of  trust 
estates,  the  feudal  possession  remains  with  the  trustees. (z)  And,  as 
the  destruction  of  contingent  remainders  at  law  defeated,  when  it 
*happened,  the  intention  of  those  who  created  them,  equity  r*oof>-| 
did  not  so  far  follow  the  law  as  to  introduce  into  its  system  a 
similar  destruction  of  contingent  remainders  of  trust  estates.  It  rather 
compelled  the  trustees  continually  to  observe  the  intention  of  those 
whose  wishes  they  had  undertaken  to  execute.  Accordingly,  if  a  con- 
veyance had  been  made  unto  and  to  the  use  of  A.  and  his  heirs,  in  trust 
for  B.  for  life,  and  after  his  decease  in  trust  for  his  first  and  other  sons 
successively  in  tail, — here  the  whole  legal  estate  would  have  been  vested 
in  A.,  and  no  act  that  B.  could  have  done,  nor  any  event  which  might 
have  happened  to  his  equitable  estate,  before  its  natural  termination, 
could  have  destroyed  the  contingent  remainder  directed  to  be  held  by  A. 
or  his  heirs  in  trust  for  the  eldest  son. 

It  may  be  proper  to  mention  in  this  place  that  an  act  has  been  passed 
for  granting  duties  on  succession  to  property  on  the  death  of  any  person 
dying  after  the  19th  of  May,  1853,  the  time  appointed  for  the  com- 

(z)  See  the  Chapter  on  Uses  and  Trusts,  ante,  p.  159  et  seq. 
(y)  Fearne,  Cont.  Rem.  321. 

(z)  See  Chapman  v.  Blissett,  Cas.  temp.  Talbot  145,  151  ;  Hopkins  v.  Hopkins,  Cas. 
temp.  Talbot  52  n. 


286  OF   INCORPOREAL   HEREDITAMENTS. 

menccment  of  the  act.(a)  These  duties  are  as  follows: — where  the 
successor  is  the  lineal  issue  or  lineal  ancestor  of  the  predecessor,  the 
duty  is  at  the  rate  of  one  per  cent,  on  the  value  of  the  succession ;  if  a 
brother  or  sister,  or  a  descendant  of  a  brother  or  sister,  three  per  cent. ; 
if  a  brother  or  sister  of  the  father  or  mother,  or  a  descendant  of  such  a 
brother  or  sister,  five  per  cent. ;  if  a  brother  or  sister  of  the  grandfather 
or  grandmother  of  the  predecessor,  or  a  descendant  of  such  a  brother  or 
sister,  six  per  cent. ;  and  if  the  successor  shall  be  in  any  other  degree 
of  collateral  consanguinity  to  the  predecessor,  or  shall  be  a  stranger  in 

r*2871  *M°0(*  to  nim' tne  duty  is  ten  Per  cent-(^)  Every  past  or  future 
disposition  of  property,  by  reason  whereof  any  person  has  or 
shall  become  beneficially  entitled  to  any  property  or  the  income  thereof 
upon  the  death  of  any  person  dying  after  the  19th  of  May,  1853,  either 
immediately  or  after  any  interval,  either  certainly  or  contingently,  and 
either  originally  or  by  way  of  substitutive  limitation,  and  every  devolu- 
tion by  law  of  any  beneficial  interest  in  property,  or  the  income  thereof, 
upon  the  death  of  any  person  dying  after  that  day,  to  any  other  person 
in  possession  or  expectancy,  is  deemed  to  have  conferred,  or  to  confer, 
on  the  person  entitled  by  reason  of  any  such  disposition  or  devolution,  a 
"succession,"  and  the  term  "successor"  denotes  the  person  so  entitled; 
and  the  term  "  predecessor"  denotes  the  settlor,  testator,  obligor,  ancestor, 
or  other  person  from  whom  the  interest  of  the  successor  is  or  shall  be 
derived. (c)  The  interest,  however,  of  a  successor  to  real  property  is 
considered  to  be  of  the  value  of  an  annuity  equal  to  the  annual  value(d) 
of  such  property  during  his  life,  or  for  any  less  period  during  which  he 
may  be  entitled  ;  and  every  such  annuity  is  to  be  valued,  for  the  purposes 
of  the  act,  according  to  tables  set  forth  in  the  schedule  to  the  act ;  and 
the  duty  is  to  be  paid  by  eight  equal  half-yearly  installments,  the  first  to 
be  paid  at  the  end  of  twelve  months  after  the  successor  shall  have  become 
entitled  to  the  beneficial  enjoyment  of  the  property ;  and  the  seven  fol- 
lowing installments  are  to  be  paid  at  half-yearly  intervals  of  six  months 
each,  to  be  computed  from  the  day  on  which  the  first  installment  shall 
have  become  due.  But  if  the  successor  shall  die  before  all  such  install- 
ments shall  have  become  due,  then  any  installments  not  due  at  his  decease 

(a)  Stat.  16  &  17  Vict.  c.  51  ;  see  Wilcox  v.  Smith,  4  Drew.  40;  Attorney-Gen.  v. 
Lord  Middleton,  3  H.  &  N.  125  ;  Attorney-Gen.  v.  Sibthorpe,  3  H.  &  N.  424  ;  Attorney- 
Gen,  v.  Lord  Braybrooke,  5  H.  &  N.  488  :  9  H.  of  L.  Cas.  150  ;  Attorney-Gen.  v.  Floyer, 
9  H.  of  L.  Cas.  477  ;  Attorney-Gen.  v.  Smythe,  9  H.  of  L.  Cas.  498. 

(6)  Stat.  16  &  17  Vict.  c.  51,  s.  10. 

(c)  Sect,  2.     Attorney-Gen.  v.  Littledale,  L.  R.  5  H.  of  L.  Cas.  290. 

(d)  Attorney-Gen.  v.  Earl  of  Sefton,  11  H.  of  L.  Cas.  257. 


OF   A    CONTINGENT   REMAINDER. 


287 


shall  cease  to  be  payable  ;  ^except  in  the  case  of  a  successor  who  r*9oo-i 
shall  have  been  competent  to  dispose  by  will(e)  of  a  continuing 
interest  in  such  property,  in  which  case  the  installments  unpaid  at  his 
death  shall  be  a  continuing  charge  on  such  interest  in  exoneration  of  his 
other  property,  and  shall  be  payable  by  the  owner  for  the  time  being  of 
such  interest. (Z)1 

(e)  Attorney-Gen.  v.  Hallett,  2  H.  &  N.  368. 
(/)  Stat.  16  &  17  Vict.  c.  51,  s.  21. 


1  By  the  act  of  Congress  of  30th  June, 
1864,  \  124  et  seq.,  a  succession  duty  is 
imposed  on  all  legacies  and  distributive 
shares  of  decedents'  estates,  arising  from 
personal  property,  if  above  the  value  of 
one  thousand  dollars,  and  also  upon  all 
successions  of  real  estate  by  the  laws  of 
descent  or  by  will  or  voluntary  conveyance 
without  valuable  and  adequate  considera- 
tion. In  case  of  personalty  the  rates  are 
one  per  cent,  of  the  clear  value  of  the  in- 
terest passing  from  a  lineal  ancestor  or 
descendant,  brother  or  sister ;  two  per  cent, 
if  the  person  taking  be  a  descendant  of  a 
brother  or  sister  of  the  person  who  dies 
possessed ;  four  per  cent,  if  a  brother  or 
sister  of  the  father  or  mother,  or  a  de- 
scendant of  a  brother  or  sister  of  the  father 
or  mother ;  five  per  cent,  if  a  brother  or 
sister  of  the  grandfather  or  grandmother 
or  a  descendant  of  the  brother  or  sister  of 
the  grandfather  or  grandmother  ;  and  six 
per  cent,  in  all  other  cases,  except  that 


successions   of  wife  or  husband  to   each 
other  are  exempt  from  all  succession  tax. 
The  rates  for  real  estate  are  the  same,  ex-  . 
cept  that  brothers  and  sisters,  as  well  as 
their  descendants,  pay  two  per  cent. 

In  addition  to  this  succession  duty,  pay- 
able to  the  United  States,  the  laws  of  some 
of  the  States  impose  a  similar  tax  for  State 
purposes.  In  Pennsylvania  it  is  not  ex- 
acted in  case  of  successions  from  a  parent, 
husband  or  wife,  or  lineal  descendant,  and 
is  therefore  called  a  Collateral  Inheritance 
tax.  M. 

By  act  of  Congress  of  July  13,  1870, 
s.  3  (16  Stat,  at  Large  256),  the  taxes  im- 
posed on  legacies  and  successions  were 
repealed,  to  take  effect  October  1,  1870. 
The  Collateral  Inheritance  tax  law  of 
Pennsylvania  is  still  in  force,  and  the 
taxes  due  the  State  are  thereby  made  liens 
upon  the  estate  which  will  bind  it  in  the 
hands  of  a  purchaser  from  the  collateral 
heir  or  devisee. 


[*289]  *CHAPTER  III. 

OF  AN  EXECUTORY  INTEREST. 

Contingent  remainders  are  future  estates,  which,  as  we  have  seen, (a) 
were,  until  recently,  continually  liable,  in  law,  until  they  actually  ex- 
isted as  estates,  to  be  destroyed  altogether ;  executory  interests,  on  the 
other  hand,  are  future  estates,  which  in  their  nature  are  indestructible.(6) 
They  arise,  when  their  time  comes,  as  of  their  own  inherent  strength ; 
they  depend  not  for  protection  on  any  prior  estates,  but  on  the  contrary, 
they  themselves  often  put  an  end  to  any  prior  estates  which  may  be  sub- 
sisting. Let  us  consider,  first,  the  means  by  which  these  future  estates 
may  be  created ;  and  secondly,  the  time  fixed  by  the  law  within  which 
they  must  arise,  and  beyond  which  they  cannot  be  made  to  commence. 


Section  I. 

Of  the  Means  by  which  Executory  Interest  may  be  created. 

1.  Executory  interest  may  now  be  created  in  two  ways — under  the 
Statute  of  Uses.(c)  and  by  will.  *Executory  interests  created 
L  -1  under  the  Statute  of  Uses  are  called  sjwinging  or  shifting  uses. 
We  have  seen(d)  that,  previously  to  the  passing  of  this  statute,  the  use 
of  land  was  under  the  sole  jurisdiction  of  the  Court  of  Chancery,  as  trusts 
are  now.  In  the  exercise  of  this  jurisdiction,  it  would  seem  that  the 
Court  of  Chancery,  rather  than  disappoint  the  intention  of  parties,  gave 
validity  to  such  interests,  of  a  future  or  executory  nature,  as  were  oc- 
casionally created  in  the  disposition  of  the  use.(e)  For  instance,  if  a 
feoffment  had  been  made  to  A.  and  his  heirs,  to  the  use  of  B.  and  his 

(a)  Ante,  p.  279  et  seq. 

tb)  Fearne,  Cont.  Rem.  418.  Before  fines  were  abolished,  it  was  a  matter  of  doubt 
whether  a  fine  would  not  bar  an  executory  interest,  in  case  of  non-claim  for  five  years 
after  a  right  of  entry  had  arisen  under  the  executory  interest.  Romilly  v.  James,  6 
Taunt.  263  (E.  C.  L.  R.  vol.  1)  ;  see  ante,  p.  49.  Executory  interests  subsequent  to  or 
in  defeasance  of  an  estate  tail  may  also  be  barred  in  the  same  manner,  and  by  the  same 
means  as  remainders  expectant  on  the  determination  of  the  estate  tail.    Fearne,  Cont. 

Rem.  423. 

(c)  Stat.  27  Hen.  VIII.  c.  10.  (rf)  Ante,  pp.  155,  156. 

(e)  Butl.  n.  (a)  to  Fearne,  Cont.  Rem.  384. 


OF  AN  EXECUTORY  INTEREST.  290 

heirs  from  to-morrow,  the  court  would,  it  seems,  have  enforced  the  use 
in  favor  of  B.,  notwithstanding  that,  by  the  rules  of  law,  the  estate  of  B. 
would  have  been  void.(/)     Here  we  have  an  instance  of  an  executory 
interest  in  the  shape  of  a  springing  use,  giving  to  B.  a  future  estate 
arising  on  the  morrow  of  its  own  strength,  depending  on  no  prior  estate, 
and  therefore  not  liable  to  be  destroyed  by  its  prop  falling.     When  the 
Statute  of  JJses(g)  was  passed,  the  jurisdiction  of  the  Court  of  Chancery 
over  uses  was  at  once  annihilated.     But  uses  in  becoming,  by  virtue  of 
the  statute,  estates  at  law,  brought  with  them  into  the  courts  of  law  many 
of  the  attributes  which  they  had  before  possessed  while  subjects  of  the 
Court  of  Chancery.     Amongst  others  which  remained  untouched  was 
this  capability  of  being  disposed  of  in  such  a  way  as  to  create  executory 
interests.    The  legal  seisin  or  possession  of  lands  became  then,  for  the  first 
time,  disposable  without  the  observance  of  the  formalities  previously  re- 
quired ;(h)  and,  amongst  the  dispositions  allowed,  were  these  executory  in- 
terests, in  which  the  legal  seisin  is  shifted  about  from  one  person  to  another, 
at  the  mercy  of  the  *springing  uses,  to  which  the  seisin  has  been 
indissolubly  united  by  the  act  of  parliament ;  accordingly  it  now    L  '       J 
happens  that,  by  means  of  uses,  the  legal  seisin  or  possession  of  lands  may 
be  shifted  from  one  person  to  another  in  an  endless  variety  of  ways.    We 
have  seen(z')  that  a  conveyance  to  B.  and  his  heirs  to  hold  from  to-morrow 
is  absolutely  void.    But  by  means  of  shifting  uses,  the  desired  result  may 
be  accomplished ;  for,  an  estate  may  be  conveyed  to  A.  and  his  heirs  to 
the  use  of  the  conveying  party  and  his  heirs  until  to-morrow,  and  then  to 
the  use  of  B.  and  his  heirs.     A  very  common  instance  of  such  a  shifting 
use  occurs  in  an  ordinary  marriage  settlement  of  lands.     Supposing  A.  to 
be  the  settlor,  the  lands  are  then  conveyed  by  him,  by  the  settlement 
executed  a  day  or  two  before  the  marriage,  to  the  trustees  (say  B.  and 
C.  and  their  heirs)  "to  the  use  of  A.  and  his  heirs  until  the  intended 
marriage  shall  be  solemnized,  and  from  and  immediately  after  the  solemn- 
ization thereof,"  to  the  uses  agreed  on  ;  for  example,  to  the  use  of  D., 
the  intended  husband,  and  his  assigns  for  his  life,  and  so  on.     Here  B. 
and  C.  take  no  permanent  estate  at  all,  as  we  have  already  seen. (A;)     A. 
continues,  as  he  was,  a  tenant  in  fee  simple  until  the  marriage ;  and,  if 
the  marriage  should  never  happen,  his  estate  in  fee  simple  will  continue 
with  him  untouched.    But,  the  moment  the  marriage  takes  place, — with- 
out any  further  thought  or  care  of  the  parties,  the  seisin  or  possession  of 
the  lands  shifts  away  from  A.  to  vest  in  D.,  the  intended  husband,  for 

(/)  Ante,  p.  269.  (g)  27  Hen.  VIII.  c.  10,  ante,  p.  157. 

(h)  See  ante,  pp.  183,  184.  (*')  Ante,  p.  269. 

(k)  Ante,  pp.  158,  189. 
18 


291  OF    INCOKPOREAL    HEREDITAMENTS. 

his  life,  according  to  the  disposition  made  by  the  settlement.  After  the 
execution  of  the  settlement,  and  until  the  marriage  takes  place,  the  in- 
terest of  all  the  parties,  except  the  settlor,  is  future,  and  contingent  also 
on  the  event  of  the  marriage.  But  the  "life  estate  of  D.,  the  intended 
husband,  is  not  an  interest  of  the  kind  called  a  contingent  remainder. 
r*oq9i  For,  **Q6  estate  which  precedes  it,  namely,  that  of  A.,  is  an  es- 
tate in  fee  simple,  after  which  no  remainder  can  be  limited.1 
The  use  to  D.  for  his  life  springs  up  on  the  marriage  taking  place,  and 
puts  an  end  at  once  and  forever  to  the  estate  in  fee  simple  which 
belonged  to  A.  Here,  then,  is  the  destruction  of  one  estate,  and  the 
substitution  of  another.  The  possession  of  A.  is  wrested  from  him  by 
the  use  to  D.,  instead  of  D.'s  estate  waiting  till  A.'s  possession  is  over, 
as  it  must  have  done  had  it  been  merely  a  remainder.  Another  instance 
of  the  application  of  a  shifting  use  occurs  in  those  cases  in  which  it  is 
wished  that  any  person  who  shall  become  entitled  under  the  settlement 
should  take  the  name  and  arms  of  the  settlor.  In  such  a  case  the  inten- 
tion of  the  settlor  is  enforced  by  means  of  a  shifting  clause,  under  which, 
if  the  party  for  the  time  being  entitled  should  refuse  or  neglect,  within  a 
definite  time,  to  assume  the  name  and  bear  the  arms,  the  land  will  shift 
away  from  him,  and  vest  in  the  person  next  entitled  in  remainder. 

From  the  above  examples,  an  idea  may  be  formed  of  the  shifts  and 
devices  which  can  now  be  effected  in  settlements  of  land,  by  means  of 
springing  and  shifting  uses.  By  means  of  a  use,  a  future  estate  may  be 
made  to  spring  up  with  certainty  at  a  given  time.  It  may  be  thought, 
therefore,  that  contingent  remainders,  having  until  recently  been  destructi- 
ble, would  never  have  been  made  use  of  in  modern  conveyancing,  but  that 
everything  would  have  been  made  to  assume  the  shape  of  an  executory 
interest.  This,  however,  is  not  the  case.  For,  in  many  instances, 
future  estates  are  necessarily  required  to  wait  for  the  regular  expiration 
of  those  which  precede  them  ;  and,  when  this  is  the  case,  no  art  or  device 
can  prevent  such  estates  from  being  what  they  are,  contingent  remainders. 
The  only  thing  that  could  formerly  be  done  was  to  take  care  for 
r*9qq-|  their  *preservation,  by  means  of  trustees  for  that  purpose.  For, 
the  law,  having  been  acquainted  with  remainders  long  before 
uses  were  introduced  into  it,  will  never  construe  any  limitation  to  be  a 
springing  or  shifting  use,  which,  by  any  fair  interpretation,  can  be 
regarded  as  a  remainder,  whether  vested  or  contingent.^)2 

(1)  Fearne,  Cont.  Rem.  386-395,  526  ;  Doe  d.  Harris  v.  Howell,  10  Barn.  &  Cres.  191, 
197  (E.  C.  L.  R.  vol.  21)  ;  1  Prest.  Abst.  130. 

1  Because,  as  has  been  previously  shown,         2  See  ante,  notes  to  pp.  215  and  274. 
a  fee  cannot  be  limited  upon  a  fee.       R.  M. 


OF   AN   EXECUTORY   INTEREST.  293 

The  establishment  of  shifting  and  contingent  uses  occasioned  great 
difficulties  to  the  early  lawyers,  in  consequence  of  the  supposed  necessity 
that  there  should,  at  the  time  of  the  happening  of  the  contingency  on 
which  the  use  was  to  shift,  be  some  person  seised  to  the  use  then  intended 
to  take  effect.     If  a  conveyance  were  made  to  B.  and  his  heirs,  to  the 
use  of  A.  and  his  heirs  until  a  marriage  or  other  event,  and  afterwards 
to  the  use  of  C.  and  his  heirs,  it  was  said  that  the  use  was  executed  in 
A.  and  his  heirs  by  the  statute,  and  that  as  this  use  was  co-extensive 
with  the  seisin  of  B.,  B.  could  have  no  actual  seisin  remaining  in  him. 
The  event  now  happens.     Who  is  seised  to  the  use  of  C.  ?     In  answer 
to  this  question  it  was  held  that  the  original  seisin  reverts  back  to  B., 
and  that  on  the  event  happening  he  becomes  seised  to  the  use  of  C. 
And  to  support  this  doctrine  it  was  further  held  that  meantime  a  possi- 
bility of  seisin,  or  scintilla  juris,  remained  vested  in  B.     But  this  doc- 
trine, though  strenuously  maintained  in  theory,  was  never  attended  to 
in  practice.     And  in  modern  times  the  opinion  contended  for  by  Lord 
St.  Leonards  was  generally  adopted,  that  in  fact  no  scintilla  whatever 
remained  in  B.,  but  that  he  was,  by  force  of  the  statute,  immediately 
divested  of  all  estate,  and  that  the  uses  thenceforward  took  effect  as  legal 
estates  according  to  their  limitations,  by  relation  to  the  original  seisin 
momentarily  vested  in  B.(w)     *And  a  final  blow  to  the  doctrine    r*294"l 
has  now  been  given  by  an  act  of  parliament, (»)  which  provides 
that  where  by  any  instrument  any  hereditaments  have  been  or  shall  be 
limited  to  uses,  all  uses  thereunder,  whether  expressed  or  implied  by 
law,  and  whether  immediate  or  future,  or  contingent  or  executory,  or  to 
be  declared  under  any  power  therein  contained,  shall  take  effect  when 
and  as  they  arise,  by  force  of  and  by  relation  to  the  estate  and  seisin 
originally  vested  in  the  person  seised  to  the  uses ;  and  the  continued 
existence  in  him  or  elsewhere  of  any  seisin  to  uses  or  scintilla  juris  shall 
not  be  deemed  necessary  for  the  support  of,  or  to  give  effect  to,  future 
or  contingent  or  executory  uses ;  nor  shall  any  such  seisin  to  uses  or 
scintilla  juris  be  deemed  to  be  suspended,  or  to  remain  or  to  subsist  in 
him  or  elsewhere. 

One  of  the  most  convenient  and  useful  applications  of  springing  uses 
occurs  in  the  case  of  powers,  which  are  methods  of  causing  a  use,  with 
its  accompanying  estate,  to  spring  up  at  the  will  of  any  given  per- 
son :(o) — Thus,  lands  may  be  conveyed  to  A.  and  his  heirs  to  such  uses 
as  B.  shall,  by  any  deed  or  by  his  will,  appoint,  and  in  default  of  and 

(m)  Sug.  Pow.  19,  8th  ed.  (n)  Stat.  23  &  24  Vict.  c.  38,  s.  7. 

(o)  See  Co.  Litt.  271  b,  n.  (1),  VII.,  1. 


294  OF    INCORPOREAL    HEREDITAMENTS. 

until  any  such  appointment,  to  the  use  of  C.  and  his  heirs,  or  to  any 
other  uses.  These  uses  will  accordingly  confer  vested  estates  on  C,  or 
the  parties  having  them,  subject  to  be  divested  or  destroyed  at  any  time 
by  B.'s  exercising  his  power  of  appointment.  Here  B.,  though  not 
owner  of  the  property,  has  yet  the  power,  at  any  time,  at  once  to  dis- 
pose of  it,  by  executing  a  deed ;  and  if  he  should  please  to  appoint  it  to 
the  use  of  himself  and  his  heirs,  he  is  at  perfect  liberty  so  to  do ;  or,  by 
virtue  of  his  power,  he  may  dispose  of  it  by  his  will.  This  power  of 
appointment  is  evidently  a  privilege  of  great  value;  *and  it  is 
[*295]  accor(jjngiy  provided  by  the  Bankruptcy  Act,  1869,  that  the 
trustee  for  the  creditors  of  any  person  becoming  bankrupt  may  exercise, 
for  the  benefit  of  his  creditors,  all  powers  (except  the  right  of  nomination 
to  a  vacant  ecclesiastical  benefice)  which  might  have  been  exercised  by 
the  bankrupt  for  his  own  benefit  at  the  commencement  of  his  bankruptcy 
or  during  its  continuance. (p)1  If,  however,  in  the  case  above  mentioned, 
B.  should  not  become  bankrupt,  and  should  die  without  having  made  any 
appointment  by  deed  or  will,  C.'s  estate,  having  escaped  destruction,  will 
no  longer  be  in  danger.  In  such  a  case  a  liability  was  until  recently  in- 
curred by  the  estate  of  C.  in  respect  of  the  debts  of  B.  secured  by  any 
judgment,  decree,  order,  or  rule  of  any  court  of  law  or  equity.  These 
judgment  debts,  by  an  act  of  parliament, (q)  to  which  reference  has  be- 
fore been  made,(r)  were  made  binding  on  all  lands  over  which  the  debtor 
should,  at  the  time  of  the  judgment,  or  at  any  time  afterwards,  have  any 
disposing  power,  which  he  might,  without  the  assent  of  any  other  person, 
exercise  for  his  own  benefit.  Before  this  act  was  passed,  nothing  but 
an  appointment  by  B.  or  his  assignees,  in  exercise  of  his  power,  could 
have  defeated  or  prejudiced  the  estate  of  C.  And  now,  by  the  act  to 
which  we  have  before  referred  for  amending  the  law  relating  to  future 
judgments,(s)  no  judgment  entered  up  after  the  29th  of  July,  1861,  the 
date  of  the  act,  can  affect  any  land  of  whatever  tenure,  until  such  land 

(p)  Stat.  32  &  33  Vict.  c.  71,  ss.  15,  par.  (4),  25,  par.  (5).  The  former  acts  gave  a 
similar  power  to  the  assignees  of  the  bankrupt,  stat.  6  Geo.  IV.  c.  16,  s.  77,  and  12  & 
13  Vict.  c.  106,  s.  147,  now  repealed  by  stat.  32  &  33  Vict.  c.  83. 

(q)  Stat.  1  &  2  Vict.  c.  110,  ss.  11,  13.         (r)  Ante,  pp.  86,  87. 

(s)  Stat.  27  &  28  Vict.  c.  112,  ante,  p.  88. 


i  See  note  to  p.  95  ante.  Lord  Eldon  equity  to  execute  the  power  for  the  benefit 
was  of  the  opinion  in  Thorp  v.  Goodall,  of  his  creditors.  No  such  enactment  is 
17  Vesey  388,  460,  that  independently  of  contained  iu  the  United  States  Statute  of 
such  special  provisions  as  those  referred  Bankruptcy,  nor  is  it  believed  that  the  in- 
to in  the  text,  a  bankrupt  who  was  tenant  solvent  laws  of  the  different  States  contain 
for  life,  with  a  general  power  of  appoint-  such  provisions.  R- 
ment,  could  not  be  compelled  by  decree  in 


OF  AN  EXECUTORY  INTEREST.  295 

shall  have  been  actually  delivered  in  execution  by  virtue  of  a  writ  of 
elegit,  or  other  lawful  authority,  in  pursuance  of  such  judgment. 

*Suppose,  however,  that  B.  should  exercise  his  power,  and  r%0Q(n 
appoint  the  lands  by  deed,  to  the  use  of  D.  and  his  heirs.  In  *-  -* 
this  case,  the  execution  by  B.  of  the  instrument  required  by  the  power 
is  the  event  on  which  the  use  is  to  spring  up,  and  to  destroy  the  estate 
already  existing.  The  moment,  therefore,  that  B.  has  duly  executed  his 
power  of  appointment  over  the  use,  in  favor  of  D.  and  his  heirs,  D.  has 
an  estate  in  fee  simple  in  possession  vested  in  him,  by  virtue  of  the 
Statute  of  Uses,  in  respect  of  the  use  so  appointed  in  his  favor ;  and  the 
previously  existing  estate  of  C.  is  thenceforth  completely  at  an  end.  The 
power  of  disposition  exercised  by  B.  extends,  it  will  be  observed,  only  to 
the  use  of  the  lands  ;  and  the  fee  simple  is  vested  in  the  appointee,  solely 
by  virtue  of  the  operation  of  the  Statute  of  Uses,  which  always  instantly 
annexes  the  legal  estate  to  the  use.(^)1  If,  therefore,  B.  were  to  make 
an  appointment  of  the  lands,  in  pursuance  of  his  power,  to  D.  and  his 
heirs,  to  the  use  of  E.  and  his  heirs,  D.  would  still  have  the  use,  which 
is  all  that  B.  has  to  dispose  of;  and  the  use  to  E.  would  be  a  use  upon 
a  use,  which,  as  we  have  seen,(w)  is  not  executed,  or  made  into  a  legal 
estate,  by  the  Statute  of  Uses.  E.,  therefore,  would  obtain  no  estate  at 
law ;  although  the  court  would,  in  accordance  with  the  expressed  inten- 
tion, consider  him  beneficially  entitled,  and  would  treat  him  as  the  owner 
of  an  equitable  estate  in  fee  simple,  obliging  D.  to  hold  his  legal  estate 
merely  as  a  trustee  for  E.  and  his  heirs. 

In  the  exercise  of  a  power  it  is  absolutely  necessary  that  the  terms  of 
the  power,  and  all  the  formalities  required  by  it,  should  be  strictly  com- 
plied with.  If  the  power  should  require  a  deed  only,  a  will  will  not  do ; 
or,  if  a  will  only,  then  it  cannot  be  exercised  by  a  *deed,(v)  or  Q_, 
by  any  other  act,  to  take  effect  in  the  lifetime  of  the  person  ex-  ■-  -* 
ercising  the  power.(#)     So,  if  the  power  is  to  be  exercised  by  a  deed 

(t)  See  ante,  pp.  158,  159.  (u)  Ante,  p.  160. 

(v)  Majoribanks  v.  Hovenden,  1  Drury  11. 

(x)  Sugd.  Pow.  210,  8th  ed. ;  1  Chance  on  Powers,  ch.  9,  pp.  273  el  seq. 

1  Thus  in  the  case  of  Rush  v.  Lewis,  9  for  a  conveyance  by  them  of  the  legal  es- 

Harris   72,  land  having   been   devised  in  tate,   to   which    they   demurred,   on    the 

trust  for  the  separate  use  of  a  married  wo-  ground  that  the  appointment  had,  by  vir- 

man  for  life,  with  remainder  to  such  uses  tue  of  the  Statute  of  Uses,  already  vested 

a,s  she  should  by  will  appoint,  she  exer-  the  legal  estate  in  him,  and  the  demurrer 

cised  the  power  in  favor  of  her  husband,  was  sustained  by  the  court.  R. 

who  then  filed  a  bill  against  the  trustees 


297  OF  INCORPOREAL  HEREDITAMENTS. 

attested  by  two  witnesses,  then  a  deed  attested  by  one  witness  only  will 
be  insufficient.^)  This  strict  compliance  with  the  terms  of  the  power 
was  carried  to  a  great  length  by  the  courts  of  law ;  so  much  so,  that 
where  a  power  was  required  to  be  exercised  by  a  writing  under  hand 
and  seal  attested  by  ivitnesses,  the  exercise  of  the  power  was  held  to  be 
invalid  if  the  witnesses  did  not  sign  a  written  attestation  of  the  signature 
of  the  deed,  as  well  as  of  the  sealing.(,s)1  The  decision  of  this  point  was 
rather  a  surprise  upon  the  profession,  who  had  been  accustomed  to  attest 
deeds  by  an  indorsement,  in  the  words  "  sealed  and  delivered  by  the 
within-named  B.  in  the  presence  of,"  instead  of  wording  the  attestation, 
as  in  such  a  case  this  decision  required,  "  Signed,  sealed,  and  delivered, 
&c."  In  order,  therefore,  to  render  valid  the  many  deeds  which  by  this 
decision  were  rendered  nugatory,  an  act  of  parliament(a)  was  passed  by 
which  the  defect  thus  arising  was  cured,  as  to  all  deeds  and  instruments 
intended  to  exercise  powers  which  were  executed  prior  to  the  30th  of 
July,  1814,  the  day  of  the  passing  of  the  act.  But  as  the  act  had  no 
prospective  operation,  the  words  "signed,  sealed,  and  delivered"  were 
still  necessary  to  be  used  in  the  attestation,  in  all  cases  where  the  power 
was  to  be  exercised  by  writing  under  hand  and  seal,  attested  by  wit- 
T*2Q81  nesses-(^)2  It  is>  however,  now  provided  that  *a  deed  executed 
after  the  13th  of  August,  1859,  in  the  presence  of  and  attested 

(y)  Sugd.  Pow,  207  et  seq.,  8th  ed. ;  1  Chance  on  Powers  331. 

(z)  Wright  v.  Wakeford,  4  Taunt.  213  ;  Doe  d.  Mansfield  v.  Peach,  2  Mau.  &  Selw. 
576;  Wright  v.  Barlow,  3  Mau.  &  Selw.  512. 

(a)  54  Geo.  III.  c.  168. 

(b)  See,  however,  Vincent  v.  Bishop  of  Sodor  and  Man,  5  Ex.  Rep.  682,  693,  in  which 
case  the  Court  of  Exchequer  intimated  that  they  considered  the  case  of  Wright  v. 
Wakefield  now  overruled  by  the  case  of  Burdett  v.  Doe  d.  Spilsbury,  10  Clarke  &  Fin. 
340;  6  Man.  &  Gran.  386  (E.  C.  L.  R.  vol.  46).  See  also  Re  Ricketts's  Trusts,  1  John. 
&  H.  70,  72,  affirmed  in  H.  of  L.  as  Newton  v.  Ricketts,  9  H.  of  L.  Cas.  262. 

1  Thus  in  Hopkins  v.  Myall,  2  Russell  &  interests  of  the  children  could  not  be  de- 

Mylne  86,  a  married  woman  having  power  feated  without  an  adherence  to  the  cere- 

to  appoint  a  fund,  by  any  writing  under  monies  required  by  the  settlement.       R. 

her  hand,  attested  by  two  witnesses,  the  2  Wright  v.  Wakeford  first  came  before 

trustees   parted  with  the  fund,  upon  the  Lord  Eldon  (17  Vesey  454),   upon  a  bill 

joint  application  of  her  husband  and  her-  for    specific    performance,    in    which    the 

self,  made  by  a  letter  signed  by  both  of  point  was,  whether  a  power  of  sale,  to  be 

them,  but  not  attested,  and  after  her  death,  testified  "  by  writing  under  the  hands  and 

a  bill  was  filed  against  the  trustees  by  the  seals"  of  the  parties,  and  attested  by  two 

children  of  the  marriage,  who,  in  default  witnesses,    was   properly  executed   by  an 

of  appointment,  were  entitled  to  the  fund,  attestation  that  the  instrument  was  sealed 

the  object  of  which  was  to  charge  them  and   delivered.     The  Chancellor   thought 

with  a  breach  of  trust  and  compel  them  to  that  in  general  "a  deed  if  delivered  may 

replace  the  fund;  and  it  was  held  that  the  be  a  good  deed,  whether  signed  or  not," 


OF   AN    EXECUTORY   INTEREST.  298 

by  two  or  more  witnesses  in  the  manner  in  which  deeds  are  ordinarily 
executed  and  attested,  shall,  so  far  as  respects  the  execution  and  attesta- 
tion thereof,  be  a  valid  execution  of  a  power  of  appointment  by  deed  or 
by  any  instrument  in  writing  not  testamentary,  notwithstanding  it  shall 
have  been  expressly  required  that  a  deed  or  instrument  in  writing  made 
in  exercise  of  such  power  should  be  executed  or  attested  with  some 
additional  or  other  form  of  execution,  or  attestation,  or  solemnity.  Pro- 
vided always,  that  this  provision  shall  not  operate  to  defeat  any  direction 
in  the  instrument  creating  the  power  that  the  consent  of  any  particular 
person  shall  be  necessary  to  a  valid  execution,  or  that  any  act  shall  be 
performed,  in  order  to  give  validity  to  any  appointment  having  no  rela- 
tion to  the  mode  of  executing  and  attesting  the  instrument ;  and  nothing 
contained  in  the  act  is  to  prevent  the  donee  of  a  power  from  executing  it 
conformably  to  the  power  by  writing,  or  otherwise  than  by  an  instrument 
executed  and  attested  as  an  ordinary  deed ;  and  to  any  such  execution 
of  a  power  this  provision  is  not  to  extend. (<?) 

The  strict  construction  adopted  by  the  courts  of  law,  in  the  case  of 
instruments  exercising  powers,  is  in  some  degree  counterbalanced  by 
the  practice  which  prevailed  in  the  Court  of  Chancery  to  give  relief  in 
certain  cases,  when  a  power  had  been  defectively  exercised — a  relief  still 
afforded  by  the  High  Court  of  Justice,  now  that  the  Court  of  Chancery 
has  been  abolished.1  If  the  courts  of  law  have  gone  to  the  very  limit 
of  strictness  *for  the  benefit  of  the  persons  entitled  in  default  r^nn-i 
of  appointment,  the  Court  of  Chancery,  on  the  other  hand, 
appears  to  have  overstepped  the  proper  boundaries  of  its  jurisdiction 

(c)  Stat.  22  &  23  Vict.  c.  35,  s.  12. 

but  that  in  the  case  before  him,  he  in-  conceiving  that  Wright  v.  Wakeford  had 
clined  to  the  opinion  that  both  signature  been  expressly  overruled  by  Burdett  v. 
and  sealing  were  required.  He,  however,  Spilsbury  in  the  House  of  Lords,  refused 
directed  a  case  to  the  Common  Pleas,  the  to  support  the  certificate,  and  sent  the 
majority  of  £he  Judges  of  which  certified  case  to  the  Exchequer,  which  certified  the 
that  the  power  had  not  been  well  executed  same  opinion  as  the  Common  Pleas,  and 
(4  Taunton  213),  and  this  opinion  was,,  the  case  was  finally  disposed  of  by  decid- 
until  very  lately,  recognized  as  settled  ing  the  power  to  have  been  well  executed, 
law,  Doe  v.  Peach,  3  Maule  &  Sel.  581,  See  15  Jurist  365.  R. 
which  gave  rise  to  the  statute  referred  to  1  At  the  same  time  it  is  equally  well 
in  the  text,  known  as  "  Mr.  Preston's  Act."  settled  that  equity  will  not  interfere  in  the 
Vincent  v.  The  Bishop  of  Sodor  and  Man  case  of  a  non-execution  of  a  power:  Las- 
was  first  sent  by  Sir  James  Wigram,  Vice-  sels  v.  Cornwallis,  2  Vernon  465  ;  Hinton 
Chancellor,  to  the  Common  Pleas,  which  v.  Toye,  1  Atkins  465 ;  Barnton  v.  Ward, 
court  certified  that  the  power  had  been  2  Id.  172;  Holmes  v.  Coggshill,  7  Vesey 
well  executed.     The  Vice-Chancellor,  not  506  ;  s.  c.  12  Id.  206.                              R. 


299  OF   INCORPOREAL    HEREDITAMENTS. 

in  favor  of  the  appointee.(<i)  For,  if  the  intended  appointee  be  a 
purchaser  from  the  person  intending  to  exercise  the  power,  or  a 
creditor  of  such  person,  or  his  wife,  or  his  child,  or  if  the  appointment 
be  for  a  charitable  purpose, — in  any  of  these  cases,  equity  will  aid  the 
defective  execution  of  the  power  ;(e)  in  other  words,  the  court  will 
compel  the  person  in  possession  of  the  estate,  and  who  was  to  hold 
it  until  the  power  was  duly  exercised,  to  give  it  up  on  an  undue 
execution  of  such  power.  It  is  certainly  hard  that,  for  want  of  a  little 
caution,  a  purchaser  should  lose  his  purchase  or  a  creditor  his  security, 
or  that  a  wife  or  child  should  be  unprovided  for ;  but  it  may  well  be 
doubted  whether  it  be  truly  equitable,  for  their  sakes,  to  deprive  the 
person  in  possession ;  for  the  lands  were  originally  given  to  him  to  hold 
until  the  happening  of  an  event  (the  execution  of  the  power),  which,  if 
the  power  be  not  duly  executed,  has  in  fact  never  taken  place. 

The  above  remarks  equally  apply  to  the  exercise  of  a  power  by  will. 
Formerly,  every  execution  of  a  power  to  appoint  by  will  was  obliged  to 
be  affected  by  a  will  conformed,  in  the  number  of  its  witnesses  and  other 
circumstances  of  its  execution,  to  the  requisitions  of  the  power.  But 
the  act  for  the  amendment  of  the  laws  with  respect  to  wills(/)  requires 
that  all  wills  should  be  executed  and  attested  in  the  same  uniform 
way  ;(</)  and  it  accordingly  enacts(A)  that  no  appointment  made  by  will 
r*Qnm  *n  exercise  °f  any  power  shall  be  valid,  *unless  the  same  be  exe- 
"■  -*  cuted  in  the  manner  required  by  the  act :  and  that  every  will 
executed  in  the  manner  thereby  required  shall,  so  far  as  respects  the 
execution  and  attestation  thereof,  be  a  valid  execution  of  a  power  of 
appointment  by  will,  notwithstanding  it  shall  have  been  expressly  re- 
quired that  a  will  made  in  exercise  of  such  power  should  be  executed 
with  some  additional  or  other  form  of  execution  or  solemnity. 

These  powers  of  appointment,  viewed  in  regard  to  the  individuals  who 
are  to  exercise  them,  are  a  species  of  dominion  over  property,  quite  dis- 
tinct from  that  free  right  of  alienation  which  has  now  become  inseparably 
annexed  to  every  estate,  except  an  estate  tail,  to  which  a  modified  right 
of  alienation   only  belongs.1     As   alienation  by  means   of   powers    of 

(d)  See  7  Ves.  506 ;  Sugd.  Pow.  532  et  seq.,  8th  ed. 

(e)  Sugd.  Pow.  534,  535,  8th  ed. ;  2  Chance  on  Powers,  c.  23,  p.  488  et  seq. ;  Lucena 
v.  Lucena,  5  Beav.  249. 

(/)  7  Will.  IV.  &  1  Vict.  c.  26.  (g)  See  ante,  p.  204. 

(h)  Sect.  10. 

1  A  voluntary  settlement  should  contain  tions  ;  and  although  any  one  may  dispose 
the  usual  and  proper  powers  and  stipula-     of  his  property  gratuitously,  if  he  please  ; 


OF    AN    EXECUTORY   INTEREST.  300 


appointment   is  of  a  less    ancient   date  than    the   right  of  alienation 
annexed  to  ownership,  so  it  is  free  from  some  of  the  incumbrances  by 
which  that  right  is  still  clogged.     Thus  a  man  may  exercise  a  power  of 
appointment  in  favor  of  himself  or  of  his  wife ;(. (although,  as  we  have 
seen,(*)  a  man  cannot  directly  convey,  by  virtue  of  his  ownership,  eithei 
to  himself  or  to  his  wife.1     So  we  have  seen(Z)  that  a    married  woman 
could  not  formerly  convey  her  estates  without  a  fine,  levied  by  her 
husband  and  herself,  in  which  she  was  separately  examined;  and  now, 
no  conveyance  of  her  estates  can  be  made  without  a  deed,  m  which  her 
husband  must  concur,  and  which  must  be  separately  acknowledged  by 
her  to  be  her  own  act  and  deed.     But  a  power  of  appointment  either  by 
deed  or  will  may  be  given  to  any  woman  ;  and  whether  given  to  her 
when  married  or  when  single,  she  may  exercise  such  a  power  without 
the   consent  of  any  husband   to   whom    she   may   then    or  thereafter 
be  married  ;{m)  and  *the  power  may  be  exercised  in  favor  oi  her    j-*301] 
husband,  or  of  any  one  else.(n)     The  act  of  parliament  to  which 
we  have  before  referred^)  for  enabling  infants  to  make  binding  settle- 
ments on  their  marriage,  with  the  sanction  of  the  Court  of  Chancery, 
extends  to  property  over  which  the  infant  has  any  power  of  appointment, 
unless  it  be  expressly  declared  that  the  power  shall  not  be  exercised  by 
an  infant.^)     But  the  act  provides  that  in  case  any  appointment  under 
a  power  of  appointment,  or  any  disentailing  assurance,  shall  have  been 
executed  by  any  infant  tenant  in  tail  under  the  act    and  such  infant 
shall  afterwards  die  under  age,  such  appointment  or  disentailing  assu- 
rance shall  thereupon  become  absolutely  void.(^) 

(0  Sugd.  Pow.  471,  8th  ed.'  (*)  Ante,  pp.  189,  227. 

(I)  Ante,  pp.  230,  231.  ,„    r 

(«)  Doe  d!  Blomfield  v.  Eyre,  3  C.  B.  557  (B.  C.  L.  R.  vol.  54)  ;  5  C.  B.  713  (E.  C. 

L.  R.  vol.  57). 

(n)  Sugd.  Pow.  471,  8th  ed.  (°)  Ante,  p.  66. 

(p)  Stat.  18  &  19  Vict,  c.  43,  s.  1.  (?)  Sect.  2. 


and  a  voluntary  settlement,  made  with  full  take.     Phillips  v    Mulhngs    L    R.  7  Ch 

knowledge  and  intention,  is  as  irrevocable  Ap.  244 ;  Hall  v.  Hall,  L.  R.  14 ^q-  365, 

in  equity  as  in  law,  yet  the  absence  of  the  reversed  in  L.  R.  8  Ch    Ap    43  )    where 

usual  forms  is  considered  to  be  a  circum-  the  rule  laid  down  in  Toker  v.  Toker 3 

stance  entitled  to  consideration  as  show-  De  G.,  J.  &  Sm.  487,  u  approved.    Russell  s 

ing  that  the  settlor  did  not  fully  under-  Appeal,  25  P.  P.  Smith  287. 

stand  the  import  of  the  settlement  when  i  See  as  to  conveyances  direct  from  hus- 

joined  to  other  circumstances  tending  to  band  to  Wife,  supra    p.  226    note  3.     An 

the  same  result.     Thus  the  absence  of  a  assignment  from   a  husband  to  his  wife, 

pow  r  of  revocation  in  a  voluntary  settle-  though  it  cannot  take  effect  as  such  will 

Lnt  was  considered  as  a  circumstance  to  be  considered  a  declaration  of  trnst  and 

be  taken  into  account  upon  a  bill  to  set  vest  the  equitable  title  in  her      Baddeley 

aside  the  settlement  on  the  ground  of  mis-  v.  Baddeley,  L.  R.  9  Ch.  Div.  113. 


301  OF   INCORPOREAL   HEREDITAMENTS. 

The  power  to  dispose  of  property  independently  of  any  ownership, 
though  established  for  some  three  centuries,  is  at  the  present  day  fre- 
quently unknown  to  those  to  whom  such  a  power  may  belong.  This 
ignorance  has  often  given  rise  to  difficulties  and  the  disappointment  of 
intention  in  consequence  of  the  execution  of  powers  by  instruments  of 
an  informal  nature,  particularly  by  wills,  too  often  drawn  by  the  parties 
themselves.  A  testator  would,  in  general  terms,  give  all  his  estate  or  all 
his  property ;  and  because  over  some  of  it  he  had  only  a  power  of  ap- 
pointment, and  not  any  actual  ownership,  his  intention,  until  lately,  was 
defeated.  For  such  a  general  devise  was  no  execution  of  his  power  of 
appointment,  but  operated  only  on  the  property  that  was  his  own.  He 
ought  to  have  given  not  only  all  that  he  had,  but  also  all  of  which 
he  had  any  power  to  dispose.1  The  act  for  the  amendment  of  the  laws 
with  respect  to  wills(r)  has  now  provided  a  remedy  for  such 
L .  *  -I  *cases,  by  enacting(s)  that  a  general  devise  of  the  real  estate  of 
a  testator  shall  be  construed  to  include  any  real  estate  which  he  may 
have  power  to  appoint  in  any  manner  he  may  think  proper,(£)  and  shall 
operate  as  an  execution  of  such  power,  unless  a  contrary  intention  shall 
appear  by  the  will. 

A  power  of  appointment  may  sometimes  belong  to  a  person  concur- 
rently with  the  ordinary  power  of  alienation  arising  from  the  ownership 
of  an  estate  in  the  lands.  Thus  lands  may  be  limited  to  such  uses  as  A. 
shall  appoint,  and  in  default  of  and  until  appointment  to  the  use  of  A. 
and  his  heirs. (u)  And  in  such  a  case  A.  may  dispose  of  the  lands  either 
by  exercise  of  his  power,(z)  or  by  conveyance  of  his  estate.^)2     If  he 

(r)  Stat.  7  Will.  IV.  &  1  Vict.  c.  26.  (s)  Sect.  27. 

(t)  Cloves  v.  Awdry,  12  Beav.  604. 

(u)  Sir  Edward  Clere's  Case,  6  Rep.  17  b  ;  Maundrell  v.  Maundrell,  10  Ves.  246. 
(x)  Roach  v.  Wadham,  6  East  289. 

(y)  Cox  v.  Chamberlain,  4  Ves.  631  ;  Wynne  v.  Griffith,  3  Bing.  179  (E.  C.  L.  R.  vol. 
11) ;  10  J.  B.  Moore  592  ;  5  B.  &  Cress.  923  (E.  C.  L.  R.  vol.  11) ;   1  Russ.  283. 

1  The  distinction  which  runs  through  only  be  made  operative  by  treating  it  as 
the  cases  is,  that  where  one  having  a  an  execution  of  the  power,  it  will  be  so 
power  possesses  also  an  interest  in  the  considered:  Doe  v.  Roake,  6  B.  &  C.  720 
subject  of  the  power,  a  conveyance  or  (E.  C.  L.  R.  vol.  13)  ;  Pepper's  Will,  1  Par- 
devise  by  him,  without  reference  to  the  sons's  Eq.  Cases  440 ;  Hay  v.  Mayer.  8 
power,  will  not  be  deemed  to  be  an  execu-  Watts  203.  R. 
tiou  of  it,  unless  there  be  evidence  of  such  2  Notwithstanding  the  law  had  been  con- 
an  intention,  and  consequently  will  not  sidered  as  so  settled  ever  since  Sir  Edward 
pass  more  than  the  interest  of  the  party ;  Clere's  case,  yet  it  was  nevertheless  held 
but  where  the  donee  of  the  power  has  no  by  Ch.  J.  Eyre,  in  Goodill  v.  Brigham,  1 
estate,  and  the  conveyance  or  devise  can  Bos.  &  Pull.  196,  that  a  power  was  incon- 


OF   AN    EXECUTORY   INTEREST.  302 

exercises  his  power,  the  estate  limited  to  him  in  default  of  appointment  is 
thenceforth  defeated  and  destroyed ;  and.  on  the  other  hand,  if  he  con- 
veys his  estate,  his  power  is  thenceforward  extinguished,  and  cannot  be 
exercised  by  him  in  derogation  of  his  own  conveyance.  So  if,  instead  of 
conveying  his  whole  estate,  he  should  convey  only  a  partial  interest,  his 
power  would  be  suspended  as  to  such  interest,  although  in  other  respects 
it  would  remain  in  force ;  that  is,  he  may  still  exercise  his  power,  so 
only  that  he  do  not  defeat  his  own  grant.  When  the  same  object  may 
be  accomplished  either  by  an  exercise  of  the  power,  or  by  a  conveyance 
of  the  estate,  care  should  be  taken  to  express  clearly  by  which  of  the 
two  methods  the  instrument  employed  is  intended  to  operate.  Under 
such  circumstances  it  is  very  usual  first  to  exercise  the  power,  and  after- 
wards *to  convey  the  estate  by  ivay  of  further  assurance  only  ;  r*303] 
in  which  case,  if  the  power  is  valid  and  subsisting,  the  subse- 
quent conveyance  is  of  course  inoperative  ;(z)  but  if  the  power  should  by 
any  means  have  been  suspended  or  extinguished,  then  the  conveyance 
takes  effect. 

The  doctrine  of  powers,  together  with  that  of  vested  remainders,  is 
brought  into  very  frequent  operation  by  the  usual  form  of  modern  pur- 
chase deeds,  whenever  the  purchaser  was  married  on  or  before  the  1st 
of  January,  1834,  or  whenever,  as  sometimes  happens,  it  is  wished  to 
render  unnecessary  any  evidence  that  he  was  not  so  married.  We  have 
seen(a)  that  the  dower  of  such  women  as  were  married  on  or  before  the 
1st  day  of  January,  1834,  still  remains  subject  to  the  ancient  law ;  and 
the  inconvenience  of  taking  the  conveyance  to  the  purchaser  jointly  with 
a  trustee,  for  the  purpose  of  barring  dower,  has  also  been  pointed  out.(ft) 
The  modern  method  of  effecting  this  object,  and  at  the  same  time  con- 
ferring on  the  purchaser  full  power  of  disposition  over  the  land,  without 

(z)  Ray  v.  Pung,  5  Mad.  310 ;  5  B.  &  Aid.  561  (B.  C.  L.  R.  vol.  7)  ;  Doe  d.  Wigan  v. 
Jones,  10  B.  &  C.  459  (E.  C.  L.  R.  vol.  21). 

(a)  Ante,  p.  232.  {b)  Ante,  p.  234. 


sistent  with  an  estate  in  fee  simple,  the  and  was   contrary   to   the   experience    of 

latter   being  of  so  high  a  nature   as   to  practical  conveyancers,  who  constantly  so 

merge  and  render  void  any  power  which  limited  estates  to  a  purchaser  in  order  to 

might  be  intended  to  accompany  it ;  and  bar  the   dower  of  the  wife   of  the  latter 

this  was  adopted  by  Sir  William  Grant,  upon  a  future  sale  by  him  (as  to  which 

when  Master  of  the  Rolls,  in  the  case  of  see   ante,   p.    234) ;   and   the    doctrine   as 

Maundrell  v.  Maundrell.    But  on  the  argu-  stated  in   the    text  is   now  well    settled  : 

ment  of  that  case  before  Lord  Eldon,  he  Logan  v.  Bell,  1   C.  B.  884   (E.  C.  L.  R. 

said  that  Goodill  v.  Brigham  "was  not  the  vol.  50) ;  Wilson  v/ Troup,  2  Cowen  195  ; 

law,"  that  it  had  always  surprised  him,  Pratt  v.  McCauley,  8  Harris  269.          R. 


303  OF   INCORPOREAL    HEREDITAMENTS. 

the  concurrence  of  any  other  person,  is  as  follows :  A  general  power  of 
appointment  by  deed  is  in  the  first  place  given  to  the  purchaser,  by 
means  of  which  he  is  enabled  to  dispose  of  the  lands  for  any  estate  at 
any  time  during  his  life.  In  default  of  and  until  appointment,  the  land 
is  then  given  to  the  purchaser  for  his  life,  and  after  the  determination 
of  his  life  interest  by  any  means  in  his  lifetime,  a  remainder  (which,  as 
we  have  seen,(c)  is  vested)  is  limited  to  a  trustee  and  his  heirs  during 
the  purchaser's  life.  This  remainder  is  then  followed  by  an  ultimate 
r*3041  remamder  to  the  heirs  and  assigns  of  the  *purchaser  for  ever, 
or,  which  is  the  same  thing,  to  the  purchaser,  his  heirs  and 
assigns  for  ever.(d)  These  limitations  are  sufficient  to  prevent  the  wife's 
right  of  dower  from  attaching.  For  the  purchaser  has  not,  at  any  time 
during  his  life,  an  estate  of  inheritance  in  possession,  out  of  which  estate 
only  a  wife  can  claim  dower  :(e)  he  has  during  his  life  only  a  life  interest, 
together  with  a  remainder  in  fee  simple  expectant  on  his  own  decease. 
The  intermediate  vested  estate  of  the  trustee  prevents,  during  the  whole 
of  the  purchaser's  lifetime,  any  union  of  this  life  estate  and  remainder. (/) 
The  limitation  to  the  heirs  of  the  purchaser  gives  him,  according  to  the 
rule  in  Shelley's  Case,(^/)  all  the  powers  of  disposition  incident  to  owner- 
ship :  though  subject,  as  we  have  seen, (A)  to  the  estate  intervening  be- 
tween the  limitation  to  the  purchaser  and  that  to  his  heirs.  But  the  es- 
tate to  the  trustee  lasts  only  during  the  purchaser's  life,  and  during  his 
life  may  at  any  time  be  defeated  by  an  exercise  of  his  power.  A  form 
of  these  uses  to  bar  dower,  as  they  are  called,  will  be  found  in  the  Appen- 
dix.^')1 As  the  estate  of  the  husband  under  these  uses  is  partly  legal 
and  partly  equitable,  the  wife,  if  married  after  the  1st  of  January,  1834, 
will  not  be  barred  of  her  dower  by  these  limitations  ;(k)  and  if  the  deed 
is  of  a  date  previous  to  that  day,  even  an  express  declaration  contained 
in  the  deed  that  such  was  the  intent  of  the  uses  will  not  be  sufficient. (/) 

(c)  Ante,  p.  268. 

(d)  Fearne,  Cont.  Rem.  347,  n.;  Co.  Litt.  379  b,  n.  (1). 

(e)  Ante,  p.  234 

(/)  Ante,  p.  283.  (ff)  Ante,  pp.  256,  259. 

(h)  Ante,  p.  256.  (i)  See  Appendix  (D). 

(k)  Ante,  p.  237. 

(I)  Fry  v.  Noble,  20  Beav.  598 ;  7  De  Gex,  M.  &  G.  687 ;  Clarke  v.  Franklin,  4  Kay 
&  J.  266. 


1  It  is  hardly  necessary  to  observe  that  ante,  p.  232,  n.  1),  such  limitations  as  are 

by  reason  of  the  simplicity  by  which  dower  referred  to  in  the   text   are  here  wholly 

is  released  on  this  side  of  the  Atlantic,  by  unknown.  R. 

means  of  a  separate  acknowledgment  (see 


OF  AN  EXECUTORY  INTEREST. 


304 


Besides  these  general  powers  of  appointment,  there  exist  also  powers 
of  a  special  kind.  Thus  the  estate  *which  is  to  arise  on  the  ex-  r*qrvc-i 
ercise  of  the  power  of  appointment  may  be  of  a  certain  limited 
duration  and  nature :  of  this  an  example  frequently  occurs  in  the  power 
of  leasing  which  is  given  to  every  tenant  for  life  under  a  properly  drawn 
settlement.1  We  have  seen(m)  that  until  recently  a  tenant  for  life,  by 
virtue  of  his  ownership,  had  no  power  to  make  any  disposition  of  the 
property  to  take  effect  after  his  decease.  He  could  not,  therefore,  grant 
a  lease  for  any  certain  term  of  years,  but  only  contingently  on  his  living 
so  long ;  and  even  now  he  must  apply  to  the  Chancery  Division  of  the 
High  Court,  unless  he  claims  under  a  settlement  made  on  or  after  the 
1st  of  November,  1856,  and  wishes  only  to  make  a  lease  not  exceeding 
twenty-one  years.  But  if  his  life  estate  should  be  limited  to  him  in  the 
settlement  by  way  of  use,  as  is  now  always  done,  a  power  may  be  con- 
ferred on  him  of  leasing  the  land  for  any  term  of  years,  and  under  what- 
ever restrictions  may  be  thought  advisable.  On  the  exercise  of  this 
power,  a  use  will  arise  to  the  tenant  for  the  term  of  years,  and  with  it 
an  estate,  for  the  term  granted  by  the  lease,  quite  independently  of  the 
continuance   of  the  life  of  the  tenant  for  life.(w)2     But  if  the  lease 


(m)  Ante,  p.  26. 


(n)  10  Ves.  256. 


1  The  obvious  benefit  of  this  is  thus 
stated  by  Mr.  Cruise  :  "  As  all  leases  made 
by  tenants  for  life  determine  by  the  death 
of  the  lessor,  powers  are  usually  inserted 
in  modern  settlements  enabling  the  tenants 
for  life  to  grant  leases,  to  be  valid  against 
the  persons  in  remainder  and  reversion  ; 
which  are  productive  of  great  advantage 
not  only  to  the  persons  interested,  but  also 
to  the  public ;  for  the  tenants  for  life  are 
thereby  enabled  to  grant  a  certain  term  to 
the  lessee.  By  this  means  they  get  a 
higher  rent,  which  is  equally  beneficial  to 
the  remainder-men  and  reversioner;  and 
the  public  is  benefited,  because  the  extent 
and  security  of  the  tenant's  interest  in- 
duces him  to  expend  his  capital  in  the 
cultivation  and  improvement  of  the  estate." 
4  Cruise  on  Real  Property,  ch.  xv.  \  1. 
See  also  the  remark  of  Sir  E.  Sugden  in 
2  Sugden  on  Powers,  ch.  xvii.  \  1.  It  is 
usual,  however,  in  England  to  accompany 
such  powers  of  leasing  given  to  tenants 
for  life  with  a  restriction  upon  making 
leases  for  a  longer  term  than  twenty-one 


years  ;  and  this,  together  with  all  other 
restrictions  upon  the  leasing  power,  are 
construed  strictly  against  the  tenant  for 
life,  and  in  favor  of  the  remainder-man 
and  reversioner.  R. 

2  Maundrell  v.  Maundrell,  10  Vesey  256, 
supra,  302  n.  Lord  Eldon,  in  illustrating 
that  a  power  of  appointment  was  con- 
sistent with  an  estate  in  fee,  said,  "  Take 
the  ordinary  case  of  a  marriage  settlement, 
with  a  power  to  the  tenants  for  life  of 
leasing  during  minority.  A  power  in  the 
tenant  for  life  to  lease  for  twenty-one 
years  is  almost  as  inconsistent  with  his 
interest  as  a  power  to  limit  the  fee  with 
that  of  a  tenant  in  fee.  But,  when  the 
tenant  for  life  executes  the  power,  the 
effect  is  not  technically  making  a  lease  ; 
but  that  lessee  in  fact  stands  precisely  in 
the  same  relation  to  all  the  persons  named 
in  the  first  settlement,  as  if  that  settle- 
ment had  contained  a  limitation  to  his  use 
for  twenty-one  years,  antecedent  to  the 
life  estate  and  the  subsequent  limitations." 
The  whole  of  the  judgment  delivered  in 


305  OF   INCORPOREAL    HEREDITAMENTS. 

attempted  to  be  granted  should  exceed  the  duration  authorized  by  the 
power,  or  in  any  other  respect  infringe  on  the  restrictions  imposed,  it 
would  be  void  altogether  as  an  exercise  of  the  power,  and  might  until 
the  passing  of  the  act  next  mentioned  have  been  set  aside  by  any  person 
having  the  remainder  or  reversion,  on  the  decease  of  the  tenant  for  life.1 
But  an  act  of  parliament  of  the  present  reign(o)  now  provides  that  such 
a  lease,  if  made  bond  fide,  and  if  the  lessee  have  entered  thereunder, 
shall  be  considered  in  equity  as  a  contract  for  a  grant,  at  the  request  of 
the  lessee,  of  a  valid  lease  under  *the  power,  to  the  like  pur- 
*-  J  port  and  effect  as  such  invalid  lease,  save  so  far  as  any  variation 
may  be  necessary  in  order  to  comply  with  the  terms  of  the  power.  But 
in  case  the  reversioner  is  able  and  willing,  during  the  continuance  of  the 
lessee's  possession,  to  confirm  the  lease  without  variation,  the  lessee  is 
bound  to  accept  a  confirmation  accordingly ;  and  such  confirmation  may 
be  by  memorandum  or  note  in  writing,  signed  by  the  persons  confirming 
and  accepting  respectively,  or  some  other  persons  by  them  respectively 
thereunto  lawfully  authorized. (p)  And  the  acceptance  of  rent  by  the 
reversioner  will  be  deemed  a  confirmation  of  the  lease  as  against  him, 
if  upon  or  before  such  acceptance  any  receipt,  memorandum,  or  note  in 
writing,  confirming  such  lease,  is  signed  by  the  person  accepting  such 
rent,  or  some  other  person  by  him  thereunto  lawfully  authorized.^)2 

There  is  a  further  provision  that  where  a  lease,  granted  in  the  intended 
exercise  of  any  such  power  of  leasing,  is  invalid  by  reason  that,  at  the 
time  of  the  granting  thereof,  the  person  granting  the  same  could  not 
lawfully  grant  such  lease,  but  the  estate  of  such  person  in  the  heredita- 
ments comprised  in  such  lease  shall  have  continued  after  the  time  when 
such  or  the  like  lease  might  have  been  granted  by  him  in  the  lawful 
exercise  of  such  power,  then  and  in  every  such  case  such  lease  shall  take 
effect  and  be  as  valid  as  if  the  same  had  been  granted  at  such  last- 
to)  Stat.  12  &  13  Vict.  c.  26,  amended  by  stat.  13  &  14  Vict.  c.  17. 
{p)  Stat,  13  &  14  Vict.  c.  17,  s.  3.  (q)  Sect.  2. 


this  case  is  well  worthy  the  perusal  of  the  v.  Bowen,  1  Chanc.  Cas.  23;  Campbell  v. 

student.  R.  Leach,   Ambler  740 ;   it  being   a   general 

1  It  is  certain  that  at  law  a  lease  for  a  principle    that  whenever   the    boundaries 

longer    term    than   is    warranted    by   the  between  the  valid  part  and  the  excess  are 

power  is  not  good  for  the  period  within  clearly  distinguishable,  the  execution  of 

the  power,  and  void  only  as  to  the  excess,  the  power  may  be  good  in  part,  and  thhr 

but  is  void  altogether  (Roe   d.  Brune  v.  has  been  enacted  by  statute  in  New  York, 

Prideaux,  10  East  184);  but  it  is,  at  the  Rev.  Stat.  vol.  1,  p.  732.  R. 

same  time,  equally  settled  in  equity,  that        2  See  as  to  this  act,  Sugden's  Essay  on 

such  a  lease  will  be  good^-o  tanto:  Powcey  the  Real  Property  Statutes,  ch.  6.        R. 


OF  AX  EXECUTORY  IXTEREST.  306 

mentioned  time ;  and  all  the  provisions  of  the  act  shall  apply  to  every 
such  lease.(r)  This  enactment  is  valuable  in  the  case  which  sometimes 
happens,  of  a  power  to  grant  leases  in  possession  being  attempted  to  be 
exercised  by  a  lease  to  commence  a  few  days  after  its  date.  If  the  lessor 
should  live  till  the  day  appointed  for  the  commencement  of  the  lease,  the 
♦lease,  which  before  the  act  would  have  been  invalid,  is  rendered  r*  307-1 
valid  by  this  enactment. 

Another  instance  of  a  special  power  occurs  in  the  case  of  the  power 
of  sale  and  exchange  usually  inserted  in  settlements  of  real  estate. 
This  power  provides  that  it  shall  be  lawful  for  the  trustees  of  the  settle- 
ment, with  the  consent  of  the  tenant  for  life  in  possession  under  the 
settlement,  and  sometimes  also  at  their  own  discretion,  during  the 
minority  of  the  tenant  in  possession,  to  sell  or  exchange  the  settled 
lands,  and  for  that  purpose  to  revoke  the  uses  of  the  settlement  as  to  the 
lands  sold  or  exchanged,  and  to  appoint  such  other  uses  in  their  stead 
as  may  be  necessary  to  eifectuate  the  transaction  proposed.  But  it  is 
provided  that  the  money  to  arise  from  any  such  sale,  or  which  may  be 
received  for  equality  of  exchange,  shall  be  laid  out  in  the  purchase 
of  other  lands;  and  that  such  lands,  and  also  the  lands  which  may 
be  received  in  exchange,  shall  be  settled  by  the  trustees  to  the  then 
subsisting  uses  of  the  settlement.  It  is  further  provided  that,  until  a 
proper  purchase  can  be  found,  the  money  may  be  invested  in  the  funds 
or  on  mortgage,  and  the  income  paid  to  the  person  who  would  have  been 
entitled  to  the  rents,  if  lands  had  been  purchased  and  settled.  The 
object  of  this  power  is  to  keep  up  the  settlement,  and  at  the  same  time 
to  facilitate  the  acquisition  of  lands  which  for  any  reason  may  be  more 
desirable  in  lieu  of  any  of  the  settled  lands  which  it  may  be  expedient 
to  part  with.  The  direction  to  lay  out  the  money  in  the  purchase  of 
other  lands  makes  the  money,  even  before  it  is  laid  out,  real  estate  in 
the  contemplation  of  equity  ;(s)  and  though  no  land  should  ever  be 
purchased,  the  parties  entitled  under  the  settlement  will  take  in  equity 
precisely  the  same  estates  in  the  investments  of  the  money  as  they 
would  have  taken  in  any  lands  which  might  have  been  purchased 
♦therewith.  The  power  given  to  the  trustees  to  revoke  the  r*3Qg-|. 
uses  of  the  settlement  and  appoint  new  uses  enables  them,  by 
virtue  of  the  Statute  of  Uses,  to  give  the  purchaser  of  the  settled  prop- 
erty a  valid  estate  in  fee  simple,  provided  only  that  the  requisitions  of 
the  power  are  complied  with.     And  a  recent  enactment  enables  the  court 

(r)  Stat.  12  &  13  Vict.  c.  26,  s.  4.  (*)  Ante,  p.  164. 


308  OF   INCORPOREAL    HEREDITAMENTS. 

to  relieve  a  bond  fide  purchaser  under  such  a  power,  in  case  the  tenant 
for  life,  or  any  other  party  to  the  transaction,  shall  by  mistake  have 
been  allowed  to  receive  for  his  own  benefit  a  portion  of  the  purchase- 
money,  as  the  value  of  the  timber  or  other  articles. (t)  Previously  to 
this  statute,  the  courts  of  equity  had  not  considered  themselves  author- 
ized to  give  relief  in  such  a  case.(w)  And  a  more  recent  enactment(v) 
embodies  in  the  settlement  the  usual  provisions,  whenever  it  is  expressly 
declared  therein  that  trustees  or  other  persons  therein  named  or  indicated 
shall  have  a  power  of  sale  either  generally  or  in  any  particular  event, 
or  a  power  of  exchange.  But  no  sale  or  exchange  under  this  act,  and 
no  purchase  of  hereditaments  out  of  money  received  on  any  such  sale  or 
exchange,  shall  be  made  without  the  consent  of  the  person  appointed  by 
the  settlement  to  consent,  or  if  no  such  person  be  appointed,  then  of  the 
person  entitled  in  possession  to  the  receipt  of  the  rents,  if  there  be  such 
a  person  under  no  disability.  But  this  is  not  to  be  taken  to  require  any 
consent  where  it  appears  from  the  settlement  to  have  been  intended  that 
such  sale,  exchange,  or  purchase  should  be  made  without  any  consent. (x) 
And  none  of  the  powers  of  the  act  are  to  take  effect  or  be  exercisable 
if  the  settlement  declares  that  they  shall  not  take  effect ;  and  where 
r*3ftQ1  *there  1S>  no  sucn  declaration,  then  if  any  variations  or  limita- 
tions of  any  of  such  powers  are  contained  in  the  settlement,  the 
same  shall  be  exercisable  or  take  effect  subject  to  such  variations  or 
limitations. {y)  Of  this  act  it  has  been  remarked  by  a  great  authority^) 
that  the  option  of  declaring  that  the  act  shall  not  take  effect  "  will  prob- 
ably be  frequently  acted  upon,  more  particularly  owing  to  the  latter 
portion  of  the  section ;  for  nothing  can  be  more  difficult,  not  to  say  dan- 
gerous, than  an  attempt  to  amalgamate  the  powers  in  a  settlement  and 
the  powers  in  the  act,  or  to  engraft  the  latter  on  the  former.  Where  the 
settlement  is  purposely  silent  as  to  the  powers  conferred  by  the  act,  and 
the  settlor  approves  of  and  chooses  to  rely  upon  them,  the  only  inconve- 
nience will  be  that  the  settlement  itself  will  not  inform  the  persons  claim- 
ing under  it  of  the  powers  vested  in  them,  but  it  will  be  necessary  to 
refer  to  the  act  for  the  powers  conferred  by  it." 

It  was  decided,  in  a  recent  case,  that  the  ordinary  power  of  sale  and 

(*)  Stat.  22  &  23  Vict.  c.  35,  s.  13. 

(u)  Cockerell  v.  Choluaeley,  1  Russ.  &  M.  418. 

(u)  Stat.  23  &  24  Vict.  c.  145,  pt.  1.  This  act  applies  only  to  deeds  executed  or 
wills  executed  or  confirmed  or  revived  by  codicil  executed  after  the  28th  of  August, 
1860,  the  date  of  the  act. 

(x)  Stat.  23  &  24  Vict.  c.  145,  s.  10.  (y)  Sect.  32. 

(z)  Lord  St.  Leonards,  Sugd.  Pow.  877,  8th  ed. 


OF  AN  EXECUTORY  INTEREST.  309 

exchange  contained  in  settlements  does  not  authorize  the  trustees  to  sell 
the  lands  with  a  reservation  of  the  minerals. («)  In  consequence  of  this 
decision,  which  took  the  profession  rather  by  surprise,  an  act  was 
passed(5)  which  confirms  all  sales,  exchanges,  partitions,  and  enfran- 
chisements theretofore  made,  in  intended  exercise  of  any  trust  or  power, 
of  land,  with  an  exception  or  reservation  of  minerals,  or  of  the  minerals 
separately  from  the  residue  of  the  land.(c)  And  it  is  provided  that  for 
the  future  every  trustee  and  other  person  authorized  to  dispose  of  land 
by  way  of  sale,  exchange,  partition,  or  enfranchisement,  may,  with  the 
sanction  of  the  Court  of  Chancery,  now  Represented  by  the 
Chancery  Division  of  the  High  Court,  to  be  obtained  on  petition  *•  -• 
in  a  summary  way,  dispose  of  the  land  without  the  minerals,  or  of  the 
minerals  without  the  land,  unless  forbidden  so  to  do  by  the  instrument 
creating  the  trust  or  power. (d) 

Other  kinds  of  special  powers  occur  where  the  persons  who  are  to  take 
estates  under  the  powers  are  limited  to  a  certain  class.  Powers  to 
jointure  a  wife,  and  to  appoint  estates  amongst  children,  are  the  most 
usual  powers  of  this  nature.  When  powers  are  thus  given  in  favor  of 
particular  objects,  the  estates  which  arise  from  the  exercise  of  the  power 
take  effect  precisely  as  if  such  estates  had  been  inserted  in  the  settlement 
by  which  the  power  was  given.  Each  estate,  as  it  arises  under  the 
power,  takes  its  place  in  the  settlement  in  the  same  manner  as  it  would 
have  done  had  it  been  originally  limited  to  the  appointee,  without  the 
intervention  of  any  power ;  and,  if  it  would  have  been  invalid  in  the 
original  settlement,  it  will  be  equally  invalid  as  the  offspring  of  the 
power,  (e)1 

It  is  provided  by  the  Succession  Duty  Act,  1853,  that  where  any 
person  shall  have  a  general  power  of  appointment,  under  any  disposition 

(a)  Buckley  v.  Howell,  29  Beav.  546.  (6)  Stat.  25  &  26  Vict.  c.  108. 

(c)  Sect.  1.  (d)  Stat.  25  &  26  Vict.  c.  108,  s.  2. 

(e)  Co.  Litt.  271  b,  n.  (1),  VII.  2. 

1  Thus,  for  example,  where  one  devised  though  they  were   collateral  in  blood  to 

an  estate  to  his  daughter  for  life,  with  a  the  appointor,  they  were  lineal  in  descent 

general   power   of  appointment   by   will,  from  the  father,  by  whom  the  power  under 

which  was  exercised  by  her  in  favor  of  her  which  they  claimed  was  originally  created, 

brothers  and  sisters,  it  was  held  that  the  Commonwealth  v,  Williams,   1  Harris  29. 

estate  was  not  liable  in  the  hands  of  these  See  also  Roach  v.  Wadham,  6  East  289, 

appointees  for  the  payment  of  a  collateral  for  a  striking  illustration  of  this  doctrine, 
inheritance  tax  to  the  state,  because,  al-  R. 

19 


310  OF   INCORPOREAL    HEREDITAMENTS. 

of  property  taking  effect  upon  the  death  of  any  person,  he  shall,  in  the 
event  of  his  making  any  appointment  thereunder,  be  deemed  to  be 
entitled,  at  the  time  of  his  exercising  such  power,  to  the  property  thereby 
appointed,  as  a  succession  derived  from  the  donor  of  the  power ;  and 
where  any  person  shall  have  a  limited  power  of  appointment,  under  a 
disposition,,  taking  effect  upon  any  such  death,  any  person  taking  any 
property  by  the  exercise  of  such  power  shall  be  deemed  to  take  the 
same  as  a  succession  derived  from  the  person  creating  the  power  as 
r*3in  *Predecessor.(/)  But  where  the  donee  of  a  general  power  of 
appointment  shall  become  chargeable  with  duty,  in  respect  of 
the  property  appointed  by  him  under  such  power,  he  shall  be  allowed  to 
deduct  from  the  duty  so  payable  any  duty  he  may  have  already  paid  in 
respect  of  any  limited  interest  taken  by  him  in  such  property,  (g) 

Powers  may  generally  speaking  be  destroyed  or  extinguished  by  deed 
of  release  made  by  the  donee  or  owner  of  the  power  to  any  person  having 
any  estate  of  freehold  in  the  land ;  "  for  it  would  be  strange  and  un- 
reasonable that  a  thing,  which  is  created  by  the  act  of  the  parties,  should 
not  by  their  act,  with  their  mutual  consent,  be  dissolved  again. "(A)  The 
exceptions  to  this  rule  appear  to  be  all  reducible  to  the  simple  principle 
that  if  the  duty  of  the  donee  of  the  power  may  require  him  to  exercise  it 
at  any  future  time,  then  he  cannot  extinguish  it  by  release. (i)  By  the 
act  for  the  abolition  of  fines  and  recoveries,^)  it  is  provided(^)  that 
every  married  woman  may,  with  the  concurrence  of  her  husband,  by 
deed  to  be  acknowledged  by  her  as  her  act  and  deed  according  to  the 
provisions  of  the  a,ct,(m)  release  or  extinguish  any  power  which  may  be 
vested  in  or  limited  or  reserved  to  her,  in  regard  to  any  lands  of  any 
tenure,  or  any  money  subject  to  be  invested  in  the  purchase  of  lands,(w) 
or  in  regard  to  any  estate  in  any  lands  of  any  tenure,  or  in  any  such 
money  as  aforesaid,  as  fully  and  effectually  as  she  could  do  if  she  were  a 
r*Qi9i  feme  sole.  Our  notice  of  powers  must  here  conclude.  *On  a 
subject  so  vast,  much  must  necessarily  remain  unsaid.  The 
masterly  treatise  of  Sir  Edward  Sugden  (afterwards  Lord  St.  Leonards), 
and  the  accurate  work  of  Mr.  Chance  on  Powers,  will  supply  the  stu- 
dent with  all  the  further  information  he  may  require. 

(/)  Stat.  16  &  17  Vict.  c.  51,  s.  4.  See  Re  Barker,  Exch.  7  Jur.  N.  S.  1061 ;  Attorney- 
General  v.  Floyer,  H.  of  Lords,  9  Jur.  N.  S.  1  ;  9  H.  of  L.  Cas.  477. 

(y)  Sect.  33. 

(A)  Albany's  Case,  1  Rep.  110  b,  113  a;  Smith  v  Death,  5  Mad.  371;  Horner  v 
Swann,  Turn.  &  Russ.  430. 

(i)  See  2  Chance  on  Powers  584.  (k)  Stat.  3  &  4  Will.  IV.  c.  74. 

(I)  Sect.  77.  \m)  See  ante,  p.  230. 

(n)  See  ante,  p.  164. 


OF  AN  EXECUTORY  INTEREST.  312 

2.  An  executory  interest  may  also  be  created  by  will.     Before  the 
passing  of  the  Statute  of  Uses,(o)  wills  were  employed  only  in  the  devising 
of  uses,  under  the  protection  of  the  Court  of  Chancery,  except  in  some 
few  cities  and  boroughs  where  the  legal  estate  in  lands  might  be  devised 
by  special  custom. (p)     In  giving  effect  to  these  customary  devises,  the 
courts,  in  very  early  times,  showed  great  indulgence  to  testators  ;(q)  and 
perhaps  the  first  instance  of  the  creation  of  an  executory  interest  occurred 
in  directions  given  by  testators  that  their  executors  should  sell  their 
tenements.     Such  directions  were  allowed  by  law  in  customary  devises  ;(r) 
and  in  such  cases  it  is  evident  that  the  sale  by  the  executors  operated 
as  the  execution  of  a  power  to  dispose  of  that  in  which  they  themselves 
had  no  kind  of  ownership.     For  executors,  as  such,  have  nothing  to  do 
with  freeholds.     Here,  therefore,  was  a  future  estate  or  executory  inter- 
est created  ;  the  fee  simple  was  shifted  away  from  the  heir  of  the  testator, 
to  whom  it  had  *descended,  and  became  vested  in  the  purchaser,    ^-^-j 
on  the  event  of  the  sale  of  the  tenement  to  him.     The  Court 
of  Chancery  also,  in  permitting  the  devise  of  the  use  of  such  lands  as 
were  not  themselves  devisable,  allowed  of  the  creation  of  executory  inte- 
rests by  will,  as  well  as  in  transactions  between  living  persons.(s)     And 
in  particular  directions  given  by  persons  having  others  seised  of  lands  to 
their  use,  that  such  lands  should  be  sold  by  their  executors,  were  not 
only  permitted  by  the  Court  of  Chancery,  but  were  also  recognized  by 
the  legislature.     For,  by  a  statute  of  the  reign  of  Henry  VIII., (t)  of  a 
date  previous  to  the  Statute  of  Uses,  it  is  provided  that  in  such  cases 
where  part  of  the  executors  refuse  to  take  the  administration  of  the  will 
and  the  residue  accept  the  charge  of  the  same  will,  then  all  bargains  and 
sales  of  the  lands  so  willed  to  be  sold  by  the  executors,  made  by  him  or 
them  only  of  the  said  executors  that  so  doth  accept  the  charge  of  the  will, 
shall  be  as  effectual  as  if  all  the  residue  of  the  executors,  so  refusing,  had 
joined  with  him  or  them  in  the  making  of  the  bargain  and  sale. 

(o)  27  Hen.  VIII.  c.  10.  (p)  Ante,  p.  203. 

(q)  30  Ass.  183  a;  Litt.  sec.  586. 

(r)  Year  Book,  9  Hen.  VI.  24  b,  Babington  :— "  La  nature  de  devis  ou  terres  sont 
devisables  est,  que  on  peut  deviser  que  la  terre  sera  vendu  par  executors,  et  ceo  est 
bon,  come  est  dit  adevant,  et  est  marvellous  ley  de  raison :  mes  ceo  est  le  nature  d'un 
devis,  et  devise  ad  este  use  tout  temps  en  tiel  forme ;  et  issint  on  aura  loyalment 
franktenement  de  cesty  qui  n'avoit  rien,  et  en  meme  le  maniere  come  on  aura  fire  from 
flint,  et  uncore  nul  fire  est  deins  le  flint:  et  ceo  est  pour  performer  le  darrein  volonte 
de  le  devisor."  Paston.— "  Une  devis  est  marveilous  en  lui  meme  quand  il  peut  prendre 
effect :  car  si  on  devise  en  Londres  que  ses  executors  vendront  ses  terres,  et  devie  seisi ; 
son  heir  est  eins  par  descent,  et  encore  par  le  vend  des  executors  il  sera  ouste."  See 
also  Litt.  s.  169. 

(5)  Perk.  ss.  507,  528.  (t)  Stat.  21  Hen.  VIII.  c.  4. 


313  OF    INCORPOREAL    HEREDITAMENTS. 

But,  as  we  have  seen,(«)  the  passing  of  the  Statute  of  Uses  abolished 
for  a  time  all  wills  of  uses,  until  the  Statute  of  Wills(a;)  restored  them. 
"When  wills  were  restored,  the  uses,  of  which  they  had  been  accustomed 
to  dispose,  had  been  all  turned  into  estates  at  law  ;  and  such  estates  then 
generally  came,  for  the  first  time,  within  the  operation  of  testamentary 
instruments.  Under  these  circumstances,  the  courts  of  law,  in  inter- 
preting wills,  adopted  the  same  lenient  construction  which  had  formerly 
been  employed  by  themselves  in  the  interpretation  of  customary  devises, 
and  also  by  the  Court  of  Chancery  in  the  construction  of  devises  of  the 
r*QiAi  anc^ent  use-  The  statute  which,  in  the  case  of  *  wills  of  uses, 
L  J  had  given  validity  to  sales  made  by  the  executors  accepting  the 
charge  of  the  will,  was  extended,  in  its  construction,  to  directions  (now 
authorized  to  be  made)  for  the  sale  by  the  executors  of  the  legal  estate, 
and  also  to  cases  where  the  legal  estate  was  devised  to  the  executors  to 
be  sold.(?/)  Future  estates  at  law  were  also  allowed  to  be  created  by 
will,  and  were  invested  with  the  same  important  attribute  of  indestructi- 
bility which  belongs  to  all  executory  interests.  These  future  estates 
were  called  executory  devises,  and  in  some  respects  they  appear  to  have 
been  more  favorably  interpreted  than  shifting  uses  contained  in  deeds,(;s) 
though  generally  speaking  their  attributes  are  the  same.  To  take  a 
common  instance :  a  man  may,  by  his  will,  devise  lands  to  his  son  A.,  an 
infant,  and  his  heirs ;  but  in  case  A.  should  die  under  the  age  of  twenty- 
one  years,  then  to  B.  and  his  heirs.  In  this  case  A.  has  an  estate  in  fee 
simple  in  possession,  subject  to  an  executory  interest  in  favor  of  B.  If 
A.  should  not  die  under  age,  his  estate  in  fee  simple  will  continue  with 
him  unimpaired.  But  if  he  should  die  under  that  age,  nothing  can 
prevent  the  estate  of  B.  from  immediately  arising,  and  coming  into 
possession,  and  displacing  forever  the  estate  of  A.  and  his  heirs. 
Precisely  the  same  effect  might  have  been  produced  by  a  conveyance  to 
[~*3151  USGS'  ^  conveyance  to  C.  and  his  *heirs,  to  the  use  of  A.  and 
his  heirs,  but  in  case  A.  should  die  under  age,  then  to  the  use 

(u)  Ante,  p.  203.  (x)  32  Hen.  VIII.  c.  1. 

(y)  Bonifaut  v.  Greenfield,  Cro.  Eliz.  80  ;  Co.  Litt.  113  a;  see  Mackintosh  v.  Barber, 
1  Bing.  50  (E.  C.  L.  R.  vol.  8). 

(z)  In  the  cases  of  Adams  v.  Savage  (2  Lord  Raym.  855 ;  2  Salk.  679)  and  Rawley 
v.  Holland  (22  Vin.  Abr.  189,  pi.  11),  limitations  which  would  have  been  valid  in  a 
will  by  way  of  executory  devise  were  held  to  be  void  in  a  deed  by  way  of  shifting  or 
springing  use.  But  these  cases  have  been  doubted  by  Mr.  Serjeant  Hill  and  Mr.  San- 
ders (1  Sand.  Uses  142,  143  ;  148,  5th  ed.),  and  denied  to  be  law  by  Mr.  Butler  (note  (y) 
to  Fearne,  Cont.  Rem.  p.  41).  Mr.  Preston  also  lays  down  a  doctrine  opposed  to  the 
above  cases  (1  Prest.  Abst.  114,  130,  131).  Sir  Edward  Sugden,  however,  supports 
these  cases,  and  seems  sufficiently  to  answer  Mr.  Butler's  objection  (Sugd.  Gilb.  Uses 
and  Trusts  35,  note). 


OF  AN  EXECUTORY  INTEREST.  315 

of  B.  and  his  heirs,  would  have  effected  the  same  result.  Not  so,  how- 
ever, a  direct  conveyance  independently  of  the  Statute  of  Uses.  A 
conveyance  directly  to  A.  and  his  heirs  would  vest  in  him  an  estate  in 
fee  simple,  after  which  no  limitation  could  follow.  In  such  a  case, 
therefore,  a  direction  that,  if  A.  should  die  under  age,  the  land  should 
belong  to  B.  and  his  heirs,  would  fail  to  operate  on  the  legal  seisin ;  and 
the  estate  in  fee  simple  of  A.  would,  in  case  of  his  decease  under  age, 
still  descend,  without  any  interruption,  to  his  heir  at  law. 

A  good  illustration  of  the  difference  between  a  contingent  remainder 
and  an  executory  devise  occurs  in  the  case  of  a  devise  of  lands  by  will  to 
A.  for  life,  with  remainder  in  fee  to  such  son  of  B.  as  shall  first  attain 
the  age  of  twenty-one  years.  In  this  case  the  limitation  to  the  son  of  B. 
is  either  a  contingent  remainder  or  an  executory  devise  according  as  A., 
the  tenant  for  life,  may  or  may  not  survive  the  testator.  If  A.  should 
survive  the  testator,  there  will  be  an  estate  of  freehold  subsisting  in  the 
premises  for  the  determination  of  which  the  limitation  to  the  son  of  B. 
must  wait,  before  it  can  take  effect  in  possession.  This  limitation  is, 
therefore,  a  remainder,  and,  as  it  depends  on  the  contingency  of  B. 
having  a  son,  who  may  attain  twenty-one,  it  is  a  contingent  remainder. 
But  if  A.  should  die  in  the  lifetime  of  the  testator,  the  will  would  start 
on  the  testator's  death,  with  a  simple  limitation  to  such  son  of  B.  as  shall 
first  attain  the  age  of  twenty-one  years.  This  limitation  has  not  to  wait 
for  the  determination  of  any  prior  estate  of  freehold ;  but  it  arises  of 
itself  on  the  event  of  a  son  of  B.  attaining  the  age  of  twenty-one  years ; 
and  it  displaces,  when  it  takes  effect,  the  estate  in  fee  simple,  which  not 
being  *otherwise  disposed  of  descends  immediately  on  the  death  r*qi£-i 
of  the  testator  to  his  heir  at  law.  It  is  therefore,  in  this  case, 
not  a  contingent  remainder,  but  an  executory  devise.  Under  the  law  as 
it  stood  before  the  passing  of  the  act  to  amend  the  law  as  to  contingent 
remainders/ a)  if  A.  survived  the  testator,  but  died  before  any  son  of  B. 
attained  twenty-one,  the  limitation  failed  for  want  of  an  estate  of  free- 
hold to  support  it :  whereas,  if  A.  died  in  the  lifetime  of  the  testator,  it 
was  not  liable  to  any  failure.  It  was  to  remedy  the  hardship  occasioned 
by  the  failure  of  such  a  limitation  as  this,  when  it  occurred  in  the  shape 
of  a  contingent  remainder,  that  the  act  above  mentioned  was  framed. 
And,  as  we  have  seen, (b)  the  act  provides  that  such  a  remainder  as  this 
shall,  in  the  event  of  the  particular  estate  determining  before  the  con- 
tingent remainder  vests,  be  capable  of  taking  effect  in  all  respects  as  if 

(a)  Stat.  40  &  41  Vict.  c.  33,  ante,  p.  271.  (b)  Ante,  p.  272. 


316  OF   INCORPOREAL   HEREDITAMENTS. 

the  contingent  remainder  had  originally  been  created  as  a  springing  or 
shifting  use  or  executory  devise  or  other  executory  limitation.  The 
force  of  the  words  "  or  other  executory  limitation"  is  not  very  apparent. 

The  alienation  of  an  executory  interest,  before  its  becoming  an  actually 
vested  estate,  was  formerly  subject  to  the  same  rules  as  governed  the 
alienation  of  contingent  remainders.(c)  But  by  the  act  to  amend  the  law 
of  real  property,  all  executory  interests  may  now  be  disposed  of  by 
deed.(c?)  Accordingly,  to  take  our  previous  example,  if  a  man  should  leave 
lands,  by  his  will,  to  A.  and  his  heirs,  but  in  case  A.  should  die  under 
age,  then  to  B.  and  his  heirs, — B.  may  by  deed,  during  A.'s  minority, 
dispose  of  his  expectancy  to  another  person,  who,  should  A.  die  under 
l~*317~l  a»e'  w^  at  *once  stand  in  the  place  of  B.  and  obtain  the  fee 
simple.  But,  before  the  act,  this  could  not  have  been  done ;  B. 
might  indeed  have  sold  his  expectancy  ;  but  after  the  event  (the  decease 
of  A.  under  age),  B.  must  have  executed  a  conveyance  of  the  legal  estate 
to  the  purchaser ;  for,  until  the  event,  B.  had  no  estate  to  convey.(e) 

In  order  to  facilitate  the  payment  of  debts  out  of  real  estate,  it  is  pro- 
vided, by  modern  acts  of  parliament,  that  when  lands  are  by  law,  or  by 
the  will  of  their  owner,  liable  to  the  payment  of  his  debts,  and  are  by 
the  will  vested  in  any  person  by  way  of  executory  devise,  the  first  execu- 
tory devisee,  even  though  an  infant,  may  convey  the  whole  fee  simple  in 
order  to  carry  into  effect  any  decree  for  the  sale  or  mortgage  of  the 
estate  for  payment  of  such  debts. (/)  And  this  provision,  so  far  as  it 
relates  to  a  sale,  has  been  extended  to  the  case  of  the  lands  having 
descended  to  the  heir  subject  to  an  executory  devise  over  in  favor  of  a 
person  or  persons  not  existing  or  not  ascertained.(^)1 

(c)  Ante,  p.  277. 

(d)  Stat.  8  &  9  Vict.  c.  106,  s.  6,  repealing  7  &  8  Vict.  c.  76,  s.  5. 

(e)  Ante,  p.  278. 

(/)  Stat.  11  Geo.  IV.  &  1  Will.  IV.  c.  47,  s.  12  ;  2  &  3  Vict.  c.  60. 
(g)  Stat.  11  &  12  Vict.  c.  87. 

1  In  addition  to  the  legislation  on  the  referred  to  in  the  text,  though  more  exten- 

subject  of  subjecting  lands  to  the  payment  sive  in  their  scope,  were  recently  enacted 

of  debts  heretofore  referred  to  on  p.  82  in  Pennsylvania.     See  act  of  18th  April, 

note,  statutory  provisions,  similar  to  those  1853,  Purdon's  Dig.  851.  R. 


OF  AN  EXECUTORY  INTEREST. 


817 


Section  II. 

Of  the  Time  within  which  Executory  Interests  must  arise. 

Secondly,  as  to  the  time  within  which  an  executory  estate  or  interest 
must  arise.  It  is  evident  that  some  limit  must  be  fixed ;  for  if  an  un- 
limited time  were  allowed  for  the  creation  of  these  future  and  indestruc- 
tible estates,  the  alienation  of  lands  might  be  henceforward  forever 
prevented  by  the  innumerable  future  estates  which  the  caprice  or  vanity 
of  some  owners  would  prompt  them  to  create.  A  limit  has,  therefore, 
*been  fixed  on  for  the  creation  of  executory  interests  ;  and  every  p^gj 
executory  interest  which  might,  under  any  circumstances,  trans- 
gress this  limit  is  void  altogether.  With  regard  to  future  estates  of  a 
destructible  kind,  namely,  contingent  remainders,  we  have  seen(A)  that 
a  limit  to  their  creation  is  contained  in  the  maxim,  that  no  remainder 
can  be  given  to  the  unborn  child  of  a  living  person  for  his  life,  followed 
by  a  remainder  to  any  of  the  issue  of  such  unborn  person : — the  latter 
of  such  remainders  being  absolutely  void.1     This  maxim,  it  is  evident, 

(h)  Ante,  p.  274. 


1  In  the  note  to  a  preceding  chapter 
(Ch.  X.  p.  215  n.),  it  has  been  seen  that 
in  case  of  a  devise  to  A.  and  his  heirs,  and 
if  he  die  without  issue,  remainder  to  B., 
the  estate  of  A.  is  cut  down  by  construc- 
tion from  an  estate  in  fee  simple  to  an 
estate  tail ;  and  on  the  other  hand,  in  a  de- 
vise to  A.  for  life,  and  if  he  die  without 
issue,  remainder  to  B.,  the  estate  of  A.  is 
enlarged  by  construction  to  an  estate  tail. 
The  reason  of  this  is  that  as  alienation 
would  in  either  of  the  above  cases  be  re- 
stricted until  after  an  indefinite  failure 
of  issue,  the  devises  would  respectively 
transgress  what  is  termed  "  the  rule 
against  perpetuities"  (see  the  remarks  of 
Lord  Brougham  in  Cole  v.  Sewell,  cited 
ante,  in  note  to  page  274),  and  hence  the 
estate  of  the  first  taker  is  construed  as  an 
estate  tail,  to  which  the  right  to  suffer  a 
common  recovery  is  inseparably  incident, 
and  the  restriction  upon  alienation  deter- 
minable, therefore,  at  the  option  of  the 
tenant  in  tail. 

Although  there  had  been  earlier  cases 


in  which  the  doctrine  of  perpetuities  might 
be  deemed  to  have  been  to  some  extent 
considered  (Pells  v.  Brown,  Cro.  Jac.  590; 
Snow  v.  Cutler,  1  Lev.  135  ;  T.  Raym.  162  } 
Taylor  v.  Biddal,  2  Modern  289) ;  yet  it 
was  not  until  the  great  case  of  the  Duke 
of  Norfolk,  3  Chanc.  Cas.  1,  2  Chanc.  Rep. 
229,  Pollexf.  223,  decided  in  1685,  that  it 
can  be  said  to  have  been  reduced  to  defi- 
nite limits.  Since  that  time,  the  rule,  of 
which  the  author  has  given  a  brief  but 
very  correct  summary,  has  been  the  sub- 
ject of  more  than  a  thousand  adjudged 
cases,  and  in  the  treatise  of  Mr.  Lewis  (52 
and  66  Law  Library),  as  also  in  the  8th 
chapter  of  Jarman  on  Wills,  the  student 
will  find  these  collected  and  distinguished 
with  refined  elaboration. 

The  Revised  Statutes  of  New  York  have 
restricted  the  protraction  of  the  period  of 
alienation  to  two  successive  estates  for  life 
limited  to  the  lives  of  two  persons  in  being 
at  the  creation  of  the  estate  :  1  Rev.  Stat. 
723  ;  Jennings  v.  Jennings,  3  Selden  547  ; 
and  in  those  of  the  United  States  in  which 


318  OF   INCORPOREAL   HEREDITAMENTS. 

in  effect,  forbids  the  tying  up  of  lands  for  a  longer  period  than  can 
elapse  until  the  unborn  child  of  some  living  person  shall  come  of  age ;. 
that  is,  for  the  life  of  a  party  now  in  being,  and  for  twenty-one  years 
after, — with  a  further  period  of  a  few  months  during  gestation,  supposing 
the  child  should  be  of  posthumous  birth.  In  analogy,  therefore,  to  the 
restriction  thus  imposed  on  the  creation  of  contingent  remainders,^')  the 
law  has  fixed  the  following  limit  to  the  creation  of  executory  interests  : — 
it  will  allow  any  executory  estate  to  commence  within  the  period  of  any 
fixed  number  of  now  existing  lives,  and  an  additional  term  of  twenty-one 
years  ;  allowing  further  for  the  period  of  gestation,  should  gestation  actu- 
ally exist. (Jc)  This  additional  term  of  twenty-one  years  may  be  inde- 
pendent or  not  of  the  minority  of  any  person  to  be  entitled  ;(l)1  and  if  no 
lives  are  fixed  on,  then  the  term  of  twenty-one  years  only  is  allowed. (m) 
But  every  executory  estate  which  might,  in  any  event,  transgress  this 
limit,  will  from  its  commencement  be  absolutely  void.     For  instance,  a 

r*31QT  S^  to  t^ie  ^rst  son  °^  ^•'  a  ^v^ng  person,  who  shall  *attain  the 
L  J  age  of  twenty-four  years,  is  a  void  gift.(n)  For  if  A.  were  to 
die,  leaving  a  son  a  few  months  old,  the  estate  of  the  son  would  arise, 
under  such  a  gift,  at  a  time  exceeding  the  period  of  twenty-one  years 
from  the  expiration  of  the  life  of  A.,  which  in  this  case  is  the  life  fixed 

(?)  Per  Lord  Kenyon,  in  Long  v.  Blackall,  7  T.  Rep.  102.  See  also  1  Sand.  Uses  197 
(205,  5th  ed.). 

(k)  Fearne,  Cont.  Rem.  430  et  seq.  (1)  Cadell  v.  Palmer,  7  Bligh  N.  S.  202. 

(m)  1  Jarm.  Wills  230,  1st  ed. ;  205,  2d  ed. ;  229,  3d  ed.  ;  Lewis  on  Perpetuities  172. 

(w)  Newman  v.  Newman,  10  Sim.  51  ;  1  Jarm.  Wills  227,  1st  ed. ;  208,  2d  ed.  ;  233, 
3d  ed. ;  Griffith  v.  Blunt,  4  Bear.  248. 


the  doctrine  is  not  thus  the  subject  of  stat-  after  elaborate   argument,  of  the  case  of 

utory  regulation,  its  rules  are  the  same  Cadell  v.  Palmer,  in  the  House  of  Lords, 

on  both  sides  of  the  Atlantic :  Hawley  v.  in  which   all   the  judges  of  England  at- 

Northampton,  8  Mass.  37 ;  Nightingale  v.  tended,  and   in  which    such   a  limitation 

Bruuell,  15  Pickering  104.                      R.  was  unanimously  sustained.    7  Bligh  N.  S. 

1  Until  a  comparatively  recent  time,  it  202;  1  Clark  &  Finelly  372.     The  decision 

was  matter  of  doubt  whether,  in  the  crea-  of  the   point  that   although  the  term   of 

tion  of  an  executory  interest,  the  term  of  twenty-one  years  might  be  taken  without 

twenty-one  years  after  lives  in  being  could  reference    to    the   infancy  of  any  person 

be  taken  as  a  term  in  gross,  without  refer-  whatever,  yet  that  the  period  of  gestation 

ence  to  the  actual  infancy  of  the  person  was  to  be  allowed  in  those  cases  only  in 

intended  to  take.     Such  a  limitation  had  which  gestation  exists,  was  not  necessary 

been  held  good  by  the  Common  Pleas  in  to  the  case  then  under  consideration,  but 

Beard  v.  Wescott,  5  Taunton  394  (E.  C.  L.  was  submitted  and  decided  "  with  a  laud- 

R.  vol.  1),  and  bad  by  the  King's  Bench,  able  anxiety  to  close  the  door  to  all  future 

s.  c.  5  Barn.  &  Aid.  801.     The  question  discussion."                                              R. 
was   finally  put  at  rest   by  the   decision, 


OF  AN  EXECUTORY  INTEREST. 


319 


on.  But  a  gift  to  the  first  son  of  A.  who  shall  attain  the  age  of  twenty- 
one  years  will  be  valid,  as  necessarily  falling  within  the  allowed  period. 
When  a  gift  is  infected  with  the  vice  of  its  possibly1  exceeding  the  pre- 
scribed limit,  it  is  at  once  and  altogether  void  both  at  law  and  in  equity.2 


1  That  the  validity  of  a  devise  is  to  be 
tested  by  possible  and  not  by  actual  events 
is  well  settled:  Newman  v.  Newman,  10 
Simons  51  ;  1  Jarman  on  Wills  233  ;  while 
at  the  same  time  the  state  of  events  at  the 
decease  of  a  testator  is  a  legitimate  subject 
of  inquiry  :  Lord  Dungannon  v.  Smith,  12 
Clark  &  Finelly  546  ;  Vanderplank  v.  King, 
3  Hare  1 ;  Williams  v.  Teale,  6  Id.  239.    R. 

2  That  is  to  say,  limitations  which  tend 
to  a  perpetuity  are  not  held  valid  to  the 
extent  of  the  rule  against  perpetuities,  and 
void  only  as  to  the  excess,  but  are  void  alto- 
gether :  Leake  v.  Robinson,  2  Merivale  362  ; 
Fox  v.  Porter,  6  Simons  485  ;  Third  Report 
of  Real  Property  Commissioners ;  and  hence 
if  the  rule  be  transgressed  as  to  the  shares 
of  any  of  the  parties  entitled  to  take,  the 
shares  of  all  of  them  will  be  affected. 

There  is,  at  the  same  time,  a  class  of  cases 
in  which,  in  order  to  prevent  a  testator's 
dispositive  scheme  from  proving  abortive 
on  account  of  the  remoteness  of  certain 
limitations,  courts  give  effect  to  such  parts 
of  his  will  as  are  susceptible  of  being 
legally  carried  into  effect,  and  discard 
those  which  are  open  to  objection  for  re- 
moteness. Thus  in  Arnold  v.  Congreve, 
1  Russell  &  Mylne  279,  a  testatrix  be- 
queathed certain  stocks  to  her  son  for 
life,  with  remainder  as  to  one  moiety,  to 
his  eldest  male  child  living  at  his  decease, 
and  as  to  the  other  moiety,  to  his  other 
children.  By  a  codicil,  she  directed  that 
her  grandchildren's  shares  should  be  set- 
tled upon  them  for  their  lives,  with  re- 
mainder to  their  issue  in  equal  shares. 
The  Master  of  the  Rolls  (Sir  John  Leach) 
decided  that  "the  bequests  to  the  grand- 
children of  the  testatrix  could  not  be  con- 
fined to  grandchildren  living  at  her  death  ; 
that  the  words  included  every  child  whom 
her  son  might  at  any  time  have ;  and 
consequently,  that  as  to  those  bequests, 
limitations  to  the  children  of  the  grand- 


children were  void ;  that  the  testator 
having,  by  the  will,  given  her  grandchil- 
dren absolute  interests,  had  made  a  codicil 
expressing  her  desire  that  they  should  only 
take  life  estates,  in  order  that  their  chil- 
dren might  take  in  succession  after  their 
deaths  ;  that  her  sole  object  in  making  the 
codicil  was  to  let  in  those  children  of 
grandchildren  ;  that  that  purpose  neces- 
sarily failed  ;  and  that  as  the  great-grand- 
children could  not  take,  the  intention  of 
the  testatrix  would  be  best  effectuated  by 
holding  that  the  absolute  interests  given 
to  the  grandchildren  by  the  will  were  not 
destroyed  by  the  codicil."  A  similar  de- 
cision was  made  in  Church  v.  Kemble,  5 
Simons  522  ;  and  the  principle  has  been 
also  obviously  applied  where  the  ineffect- 
ual qualifying  clauses  engrafted  on  the 
absolute  gift  are  contained  in  the  same 
paper.  In  Carver  v.  Bowles,  2  Russell  & 
Mylne  306,  a  testator  having,  under  a 
marriage  settlement,  a  testamentary  power 
of  appointment  among  his  children,  ap- 
pointed the  fund  to  his  five  children, 
"  equally  to  be  divided  share  and  share 
alike,"  and  then  went  on  to  direct  that  the 
shares  "of  his  daughters  should  be  held 
by  his  executors  to  their  separate  use,  and 
without  power  of  anticipation  or  aliena- 
tion, and  after  their  decease,  for  all  and 
every  or  any  one  or  more  of  their  children 
as  they  should  by  deed  or  will  appoint,  and 
in  default  of  appointments,  for  all  their 
children  equally,  who,  being  sons,  should 
attain  twenty-one,  or  being  daughters, 
should  attain  twenty-one  or  marry;"  and 
it  was  held  that  the  words  of  appointment 
were  sufficient  to  vest  the  shares  absolutely 
in  the  daughters  ;  that  the  attempt  to  re- 
strict their  interest  by  limitations  to  their 
issue,  being  inoperative,  did  not  cut  down 
the  absolute  appointment,  but  that  it  was 
competent  to  the,  donee  of  the  power  to 
limit  the  interests  which  he  appointed  to 


319  OF   INCORPOREAL    HEREDITAMENTS. 

And  even  if,  in  its  actual  event,  it  should  fall  greatly  within  such  limit, 
yet  it  is  still  as  absolutely  void  as  if  the  event  had  occurred  which  would 
have  taken  it  beyond  the  boundary.  If,  however,  the  executory  limita- 
tion should  be  in  defeasance  of,  or  immediately  preceded  by,  an  estate 
tail,  then,  as  the  estate  tail  and  all  subsequent  estates  may  be  barred  by 
the  tenant  in  tail,  the  remoteness  of  the  event  on  which  the  executory 
limitation  is  to  arise  will  not  affect  its  validity.(o) 

It  will  be  observed  that  the  act  to  amend  the  law  as  to  contingent 
remainders^)  applies  only  to  a  contingent  remainder  which  would  have 
been  valid  as  a  springing  or  shifting  use  or  executory  devise  or  other 
limitation  had  it  not  had  a  sufficient  estate  to  support  it  as  a  contingent 
remainder.  A  gift  to  the  first  son  of  B.  who  shall  attain  the  age  of 
twenty-one  years  is  valid  as  a  springing  or  shifting  use  or  executory 
devise,  when  not  preceded  by  an  estate  of  freehold  to  turn  it  into  a  con- 
tingent remainder.  But  according  to  the  rule  above  laid  down,  a  gift  to 
r^o.9Q-|  the  first  son  of  B.  who  shall  attain  *the  age  of  twenty -four  years 
is  void  for  remoteness  when  not  preceded  by  a  particular  estate 
of  freehold.  When  so  preceded  it  is,  as  we  have  seen,(q)  a  good  contin- 
gent remainder ;  but  if  the  preceding  estate,  which  supports  it,  should 
determine  naturally  before  any  son  of  B.  should  attain  twenty-four, 
then  this  remainder  will  still  fail,  and  can  derive  no  support  from  the 
recent  act. 

In  addition  to  the  limit  already  mentioned,  a  further  restriction  has 
been  imposed  by  a  modern  act  of  parliament,^)  on  attempts  to  accumulate 
the  income  of  property  for  the  benefit  of  some  future  owner.  This  act 
was  occasioned  by  the  extraordinary  will  of  the  late  Mr.  Thellusson,  who 
directed  the  income  of  his  property  to  be  accumulated  during  the  lives 
of  all  his  children,  grandchildren,  and  great-grandchildren  who  were  living 
at  the  time  of  his  death,  for  the  benefit  of  some  future  descendants  to  be 
living  at  the  decease  of  the  survivor ;(«)  thus  keeping  strictly  within  the 
rule  which  allowed  any  number  of  existing  lives  to  be  taken  as  the  period 

(o)  Butler's  note  (h)  to  Fearne,  Cont.  Rem.  562 ;  Lewis  on  Perpetuities  669.  See 
ante,  p.  289,  n.  (b). 

{p)  Stat.  40  &  41  Vict.  c.  33,  ante,  pp.  271,  316.  (q)  Ante,  p.  271. 

(/•)  Stat.  39  &  40  Geo.  III.  c.  98 ;  Fearne,  Cont.  Rem.  538,  n.  (x). 
(«)  4  Ves.  227  ;  Fearne,  Cont.  Rem.  436,  note. 


his  daughters  to  their  separate  use,  and  to  Kampf  v.  Jones,  2  Keen  756,  and  Ring  v. 
restrain  them  from  anticipation  or  alien-  Hardwicke,  2  Beavan  352,  the  same  prin- 
ation ;   and  in   the   subsequent   cases   of    ciple  was  applied.  R. 


OP  AN  EXECUTORY  INTEREST.  320 

for  an  executory  interest.1  To  prevent  the  repetition  of  such  a  cruel 
absurdity,  the  act  forbids  the  accumulation  of  income  for  any  longer  term 
than  the  life  of  the  grantor  or  settlor,  or  twenty-one  years  from  the  death 
of  any  such  grantor,  settlor,  devisor,  or  testator,  or  during  the  minority 
of  any  person  living  or  in  ventre  sa  me\e  at  the  death  of  the  grantor, 
devisor,  or  testator,  or  during  the  minority  only  of  any  person  who,  under 
the  settlement  or  will,  would  for  the  time  being,  if  of  full  age,  be  entitled 
to  the  income  so  directed  to  be  accumulated.^)  But  the  act  does  not 
extend(w)  to  *any  provision  for  payment  of  debts,  or  for  raising 
portions  for  children,  (a;)  or  to  any  direction  touching  the  pro-  L  J  J 
duce  of  timber  or  wood.  Any  direction  to  accumulate  income,  which 
may  exceed  the  period  thus  allowed,  is  valid  to  the  extent  of  the  time 
allowed  by  the  act,  but  void  so  far  as  this  time  may  be  exceeded. {y) 
And  if  the  direction  to  accumulate  should  exceed  the  limits  allowed  by 
law  for  the  creation  of  executory  interests,  it  will  be  void  altogether, 
independently  of  the  above  act.(s) 

(t)  Wilson  v.  Wilson,  1  Sim.  N.  S.  288.  (w)  Sect.  3. 

(x)  See  Halford  v.  Stains,  16  Sim.  488,  496  ;  Bacon  v.  Procter,  Turn.  &  Russ.  31  ; 
Bateman  v.  Hodgkin,  10  Beav.  426  ;  Barrington  v.  Liddell,  2  De  Gex,  M.  &  G.  480  ; 
Edwards  v.  Tuck,  3  De  Gex,  M.  &  G.  40. 

(y)  1  Jarm.  Wills  269,  1st  ed. ;  250,  2d  ed. ;  286,  3d  ed.  See  Re  Lady  Rosslyn's  Trust, 
16  Sim.  391. 

(z)  Lord  Southampton  v.  Marquis  of  Hertford,  2  Ves.  &  Bea.  54 ;  Ker  v.  Lord  Dun- 
gannon,  1  Dr.  &  War.  509 ;  Curtis  v.  Lukin,  5  Beav.  147  ;  Broughton  v.  James,  1  Coll. 
26 ;  Scarisbrick  v.  Skelmersdale,  17  Sim.  187  ;  Turvin  v.  Newcome,  3  Kay  &  J.  16. 

1  This  was  the  celebrated  case  of  Thel-  Geo.  III.  have  been  enacted  in  New  York, 

lussonv.  Woodford,  4  Vesey  221, 11  Id.  112,  Pennsylvania,   and    perhaps   some   other 

in  which  the  validity  of  the  devise  was  sus-  States:    1  Rev.  St.  726;   Vail  v.  Vail,  4 

tained,  but  with  much  regret  on  the  part  Paige  317;   Hawley  v.  James,  5  Id.  322; 

of  the  court.     Statutory  provisions  of  the  King  v.  Rundle,  15  Barb.  159  ;  Penns.  Stat, 

same  character  as  those  of  the  39  &  40  of  18th  April,  1853,  Purd.  Dig.  853.     R. 


[*322]  CHAPTER    IV. 

OF   HEREDITAMENTS   PURELY   INCORPOREAL. 

We  now  come  to  the  consideration  of  incorporeal  hereditaments,  usually 
so  called,  which,  unlike  a  reversion,  a  remainder,  or  an  executory  interest, 
are  ever  of  an  incorporeal  nature,  and  never  assume  a  corporeal  shape. 
Of  these  purely  incorporeal  hereditaments  there  are  three  kinds,  namely, 
first,  such  as  are  appendant  to  corporeal  hereditaments ;  secondly,  such 
as  are  appurtenant  ;l  both  of  which  kinds  of  incorporeal  hereditaments 
are  transferred  simply  by  the  conveyance,  by  whatever  means,  of  the 
corporeal  hereditaments  to  which  they  may  belong;  and  thirdly,  such  as 
are  in  gross,  or  exist  as  separate  and  independent  subjects  of  property, 
and  which  are  accordingly  said  to  lie  in  grant,  and  have  always  required 
a  deed  for  their  transfer.(a)  But  almost  all  purely  incorporeal  heredita- 
ments may  exist  in  both  the  above  modes,  being  at  one  time  appendant 
or  appurtenant  to  corporeal  property,  and  at  another  time  separate  and 
distinct  from  it. 

1.  Of  incorporeal  hereditaments  which  are  appendant  to  such  as  are 
corporeal,  the  first  we  shall  consider  is  a  seignory  or  lordship.     In  a 

(a)  Ante,  p.  239. 

1  The  difference  between  appendant  and  forest,  his  waters,  his  turf-pits,  &c.     All 

appurtenant  incorporeals  may  be  said  to  be  persons  holding  ground  in  the  manor  would 

that  the  former  exist  by  reason  of  tenure,  be  tenants  of  the  lord,  and  each  according 

and   the   latter   arise   only   upon   a  grant  to  his  due  proportion  would  have  rights  of 

actual  or  presumed.     This   can  be   illus-  common  of  pasture  in  the  lord's  waste,  of 

trated   by  reference   to  the   condition   of  estovers  in   his   forest,  of  piscary  in   his 

things  in  feudal  times.     Suppose  a  manor  waters,  of  turbary,  &c,  and  these,  rights 

to  consist  of  a  large  extent  of  land.     The  of  common  would  exist,  as  is  said  in  the 

lord  of  the  manor  would  have  the  ultimate  old  books,  of  common  right,  without  grant, 

dominion  of  it  all,  but  only  a  portion  of  it  but  because  of  the  tenure,  and  they  are 

would   be   in  his   own    possession.     Here  appendant.     So  the  advowson,  or  right  of 

would  be  the  manor-house  and  grounds,  appointing  the  parson  to  officiate  in  the 

the  residence  of  the  lord.    In  another  place  church,  would  be  appendant  to  the  manor, 

the  freeholders  would  have  their  respective  See  2  Bl.  Com.  21,  33;  Co.  Litt.  122  a,  b; 

portions,  for  residence  and  cultivation ;  in  2  Inst.  84.     And  see  infra,  p.  342.     But  if 

another  the  villeins  would  have  allotted  to  a  man  owning  pasture  land  granted  to  the 

them  for  definite  terms  portions  of  the  land  owner  of  neighboring  land   the  right  for 

which  they  cultivated  ;  and  in  still  another  him  and  his  heirs,  owners  of  that  land,  to 

would  be  the  church  built  by  the  lord,  for  pasture  cattle  on  the  land  of  the  grantor, 

the  use  of  himself  and  his  tenants.     Then  such  a  right  would  be  appurtenant  to  the 

there  would  remain  the  lord's  waste,  his  land  of  the  grantee. 


OF    HEREDITAMENTS    PURELY    INCORPOREAL.  322 

previous  part  of  our  work(5)  we  have  noticed  the  origin  of  manors.  Of 
such  of  the  lands  belonging  to  a  manor  as  the  lord  granted  out  in  fee 
simple  to  his  free  tenants,  nothing  remained  to  him  but  his  seignory  or 
lordship.  By  the  grant  of  an  estate  *in  fee  simple,  he  neces- 
sarily parted  with  the  feudal  possession.  Thenceforth  his  ■-  -• 
interest,  accordingly,  became  incorporeal  in  its  nature.  But  he  had  no 
reversion ;  for  no  reversion  can  remain,  as  we  have  already  seen,(c)  after 
an  estate  in  fee  simple.  The  grantee,  however,  became  his  tenant,  did 
to  him  fealty,  and  paid  to  him  his  rent  service,  if  any  were  agreed  for. 
This  simply  having  a  free  tenant  in  fee  simple  was  called  a  seignory. 
To  this  seignory  the  rent  and  fealty  were  incident,  and  the  seignory 
itself  was  attached  or  appendant  to  the  manor  of  the  lord  who  had  made 
the  grant ;  whilst  the  land  granted  out  was  said  to  be  holden  of  the 
manor.  Very  many  grants  were  thus  made,  until  the  passing  of  the 
statute  of  Quia  emptores(d)  put  an  end  to  these  creations  of  tenancies  in 
fee  simple,  by  directing  that  on  every  such  conveyance  the  feoffee  should 
hold  of  the  same  chief  lord  as  his  feoffor  held  before. (?)  But  such 
tenancies  in  fee  simple  as  were  then  already  subsisting  were  left 
untouched,  and  they  still  remain  in  all  cases  in  which  freehold  lands  are 
holden  of  any  manor.  The  incidents  of  such  a  tenancy,  so  far  as 
respects  the  tenant,  have  been  explained  in  the  chapter  on  the  tenure  of 
an  estate  in  fee  simple.  The  correlative  rights  belonging  to  the  lord 
form  the  incidents  of  his  seignory.  The  seignory,  with  all  its  incidents, 
is  an  appendage  to  the  manor  of  the  lord,  and  a  conveyance  of  the 
manor  simply,  without  mentioning  its  appendant  seignories,  will  accord- 
ingly comprise  the  seignories,  together  with  all  rents  incident  to  them.(/) 
In  ancient  times  it  was  necessary  that  the  tenants  should  attorn  to  the 
feoffee  of  the  manor,  before  the  rents  and  services  could  effectually  pass 
to  him.(^)  For,  in  this  respect,  the  owner  of  a  seignory  was  in  the  same 
position  as  *the  owner  of  a  reversion.(A)  But  the  same  statute(i)  r^qo^ 
which  abolished  attornment  in  the  one  case  abolished  it  also  in 
the  other.     No  attornment,  therefore,  is  now  required. 

Other  kinds  of  appendant  incorporeal  hereditaments  are  rights  of 
common,  such  as  common  of  turbary,  or  a  right  of  cutting  turf  in  another 
person's  land ;  common  of  piscary,  or  a  right  of  fishing  in  another's 
water ;  and  common  of  pasture,  which  is  the  most  usual,  being  a  right  of 

(b)  Ante,  p.  119.  (c)  Ante,  p.  252. 

(<f)  18  Edw.  I.  c.  1.  (e)  Ante,  pp.  62,  118. 

(/)  Perk.  s.  116.  \g)  Co.  Litt.  310  b. 

(h)  Ante,  p.  247.  (i)  Stat.  4  &  5  Anne,  c.  16,  s.  9 ;  ante,  p.  248. 


324  OF   INCORPOREAL   HEREDITAMENTS. 

depasturing  cattle  on  the  land  of  another.  The  rights  of  common  now 
usually  met  with  are  of  two  kinds  :  one  where  the  tenants  of  a  manor 
possess  rights  of  common  over  the  wastes  of  the  manor,  which  belong  to 
the  lord  of  the  manor,  subject  to  such  rights  ;(k)  and  the  other,  where 
the  several  owners  of  strips  of  land,  composing  together  a  common  field, 
have  at  certain  seasons  a  right  to  put  in  cattle  to  range  over  the  whole. 
The  inclosure  of  commons,  so  frequent  of  late  years,  has  rendered  much 
less  usual  than  formerly  the  right  of  common  possessed  by  tenants  of 
manors  over  the  lord's  wastes.  These  inclosures  were  formerly  effected 
by  private  acts  of  parliament,  obtained  for  the  purpose  of  each  particular 
inclosure  subject  to  the  provisions  of  the  general  inclosure  act,(?)  which 
contained  general  regulations  applicable  to  all.  But  by  an  act  of  par- 
r*qnrn  liament  of  the  present  reign(m)  *commissioners  were  appointed, 
styled  the  Inclosure  Commissioners  for  England  and  Wales, 
under  whose  sanction  inclosures  were  more  readily  effected,  several  local 
inclosures  being  comprised  in  one  act.  The  same  commissioners  were 
also  invested  with  powers  for  facilitating  the  drainage  of  lands. (n)  But 
by  a  recent  act  provision  has  been  made  for  the  improvement,  protection, 
and  management  of  commons  near  the  metropolis,  by  means  of  schemes 
for  the  purpose,  to  be  certified  by  the  Inclosure  Commissioners  and  con- 
firmed by  act  of  parliament.^)  And  an  important  act  has  now  been 
passed  for  facilitating  the  regulation  and  improvement  of  commons  and 
for  amending  the  acts  relating  to  the  inclosure  of  commons. (p)     The 

(k)  Ante,  p.  119.  See  Smith  v.  Earl  Brownlow,  L.  R.,  9  Eq.  241 ;  Warwick  v.  Queen's 
College,  L.  R.,  10  Eq.  105,  affirmed  L.  R.,  6  Ch.  Ap.  716  ;  Betts  v.  Thompson,  L.  R.,  6 
Ch.  Ap.  732  ;  Hall  v.  Byron,  L.  R.,  4  Ch.  Div.  667. 

(I)  41  Geo.  III.  c.  109  ;  see  also  stats.  3  &  4  Will.  IV.  c.  87  ;  3  &  4  Vict.  c.  31. 

(m)  Stat.  8  &  9  Vict.  c.  118,  amended  and  extended  by  stats.  9  &  10  Vict.  c.  70  ;  10 
&  11  Vict.  c.  Ill  ;  11  &  12  Vict.  c.  99  ;  12  &  13  Vict.  c.  83 ;  15  &  16  Vict.  c.  79;  17  &  18 
Vict.  c.  97  ;  20  &  21  Vict.  c.  31 ;  22  &  23  Vict.  c.  43 ;  31  &  32  Vict.  c.  89 ;  and  36  Vict. 
c.  19 ;  and  continued  by  stats.  14  &  15  Vict.  c.  53 ;  21  &  22  Vict.  c.  53  ;  23  &  24  Vict, 
c.  81  ;  25  &  26  Vict.  c.  73,  and  39  &  40  Vict.  c.  69.  The  stat.  8  &  9  Vict.  c.  118  con- 
tains (sect.  147)  a  remarkably  useful  provision,  authorizing  exchanges  of  lands  whether 
inclosed  or  not.  And  this  provision  has  since  been  extended  to  partition  between 
owners  of  undivided  shares  (stat.  11  &  12  Vict.  c.  99,  s.  13,  ante,  p.  139)  and  to  other 
hereditaments,  rights,  and  easements  (stat.  12  &  13  Vict.  c.  83,  s.  7),  and  in  other 
respects  (see  stats.  15  &  16  Vict.  c.  79,  ss.  31,  32  ;  17  &  18  Vict.  c.  97,  ss.  2,  5 ;  20  &  21 
Vict.  c.  31,  ss.  4-11  ;  22  &  23  Vict.  c.  43,  ss.  10,  11).  Socage  lands  may  be  exchanged 
for  gavelkind.  Minet  v.  Leman,  20  Beav.  269  ;  7  De  Gex,  M.  &  G.  340.  And  freeholds 
may  be  exchanged  for  copyholds.  Stat.  9  &  10  Vict.  c.  70,  s.  9,  last  continued  by  stat. 
40  &  41  Vict.  c.  67. 

(n)  Stats.  10  &  11  Vict.  c.  38  and  24  &  25  Vict.  c.  133  ;  see  also  the  statutes  men- 
tioned ante,  pp.  30,  31. 

(o)  Stat.  29  &  30  Vict.  c.  122,  amended  by  stat.  32  &  33  Vict.  c.  107. 

(i>)  Stat.  39  &  40  Vict.  c.  56. 


OF   HEREDITAMENTS    PURELY   INCORPOREAL.  325 

short  title  of  this  act  is  "  The  Commons  Act,  1876."  This  act  contains 
provisions  not  only  for  the  inclosure  of  commons  but  also  for  their  regu- 
lation and  improvement  when  uninclosed.  And  if  any  common  is  situate 
within  six  miles  of  any  town  having  a  population  of  not  less  than  five 
thousand  inhabitants,  it  is  called  a  suburban  common,  and  as  such  is 
subjected  to  special  regulations  for  the  benefit  of  the  inhabitants  of  such 
town. (q)  Improved  provisions  have  also  been  made  for  the  *allot-  r*32(3"i 
ment  of  field  gardens  for  the  poor,  and  of  recreation  grounds.(r) 
The  rights  of  common  possessed  by  owners  of  land  in  common  fields, 
however  useful  in  ancient  times,  are  now  found  greatly  to  interfere  with 
the  modern  practice  of  husbandry  ;  and  acts  have  accordingly  been  passed 
to  facilitate  the  exchange(s)  and  separate  inclosure(«)  of  lands  in  such 
common  fields.  Under  the  provisions  of  these  acts,  each  owner  may 
now  obtain  a  separate  parcel  of  land,  discharged  from  all  rights  of  common 
belonging  to  any  other  person.  The  rights  of  common  above  spoken  of, 
being  appendant  to  the  lands  in  respect  of  which  they  are  exercised, 
belong  to  the  lands  of  common  right,(w)  by  force  of  the  common  law 
alone,  and  not  by  virtue  of  any  grant,  express  or  implied.  And  any 
conveyance  of  the  lands  to  which  such  rights  belong  will  comprise  such 
rights  of  common  also. (a;)  Another  kind  of  appendant  incorporeal  hered- 
itament is  an  advowson  appendant  to  a  manor.  But  on  this  head  we 
shall  reserve  our  observations  till  we  speak  of  the  now  more  frequent 
subject  of  conveyance,  an  advowson  in  gross,  or  an  advowson  unappended 
to  any  thing  corporeal. 

In  connection  with  the  subject  of  commons,  it  may  be  mentioned  that 
strips  of  waste  land  between  an  inclosure  and  a  highway,  and  also  the 
soil  of  the  highway  to  the  middle  of  the  road,  presumptively  belong  to 
the  owner  of  the  inclosure. (y)  And  a  conveyance  of  the  *inclo-  r*327"| 
sure,(2)  even  by  reference  to  a  plan  which  does  not  comprise  the 
highway, (a)  will  carry  with  it  the  soil  as  far  as  one-half  the  road.     But 

(q)  Sect.  8.  (r)  Stat.  39  &  40  Vict.  c.  56 ;  Part  II. 

(s)  Stat.  4  &  5  Will.  IV.  c.  30. 

(t)  Stat,  6  &  7  Will.  IV.  c.  115,  extended  by  stat.  3  &  4  Vict.  c.  31.  See  also  stats. 
8  &  9  Vict.  c.  118  ;  9  &  10  Vict.  c.  70 ;  10  &  11  Vict.  c.  Ill ;  11  &  12  Vict.  c.  99  ;  12  & 
13  Vict.  c.  83 ;  15  &  16  Vict.  c.  79 ;  17  &  18  Vict.  c.  97  ;  20  &  21  Vict.  c.  31. 

(u)  Co.  Litt.  122  a  ;  Bac.  Abr.  tit.  Extinguishment  (C).  See,  however,  Lord  Dunraven 
v.  Llewellyn,  15  Q.  B.  791  (E.  C.  L.  R.  vol.  69) ;  ante,  p.  119,  n.  (/). 

(x)  Litt.  s.  183  ;  Co.  Litt.  121  b. 

(y)  Doe  d.  Pring  v.  Pearsey,  7  B.  &  C.  304  (E.  C.  L.  R.  vol.  14)  ;  Scoones  v.  Morrell, 
1  Beav.  251. 

(z)  Simpson  v.  Dendy,  8  C.  B.,  N.  S.  433  (E.  C.  L.  R.  vol.  98). 

(a)  Berridge  v.  Ward,  30  L.  J.,  C.  P.  218  ;  10  C.  B.,  N.  S.  400  (E.  C.  L.  R.  vol.  100). 


327  OF   INCORPOREAL    HEREDITAMENTS. 

if  the  strips  of  waste  land  communicate  so  closely  to  a  common  as  in  fact 
to  form  part  of  it,  they  will  then  belong  to  the  lord  of  the  manor,  as  the 
owner  of  the  common. (b)  Where  a  public  way  is  foundrous,  as  such  ways 
frequently  were  in  former  times,  the  public  have  by  the  common  law  a 
right  to  travel  over  the  adjoining  lands,  and  to  break  through  the  fences 
for  that  purpose. (c)  It  is  said  that  in  former  times  the  landowners,  to 
prevent  their  fences  being  broken  and  their  crops  spoiled  when  the  roads 
were  out  of  repair,  set  back  their  hedges,  leaving  strips  of  waste  at  the 
side  of  the  road,  along  which  the  public  might  travel  without  goincr  over 
the  lands  under  cultivation.  Hence  such  strips  were  presumed  to  belong 
to  the  owners  of  the  lands  adjoining. [d)  Where  lands  adjoin  a  river,  the 
soil  of  one-half  of  the  river  to  the  middle  of  the  stream  is  presumed  to  be- 
long to  the  owner  of  the  adjoining  lands. (e)  But  if  it  be  a  tidal  river, 
the  soil  up  to  high-water  mark  appears  presumptively  to  belong  to  the 
Crown.(/)  The  Crown  is  also  presumptively  entitled  to  the  sea-shore  up 
to  high-water  mark  of  medium  tides  ;(g)  although  grants  of  parts  of  the 
[~*3981  sea_snore  nave  not  unfrequently  been  made  *to  subjects  ;{h)  and 
such  grants  may  be  presumed  by  proof  of  long  continued  and  un- 
interrupted acts  of  ownership.  (2)  A  sudden  irruption  of  the  sea  gives 
the  Crown  no  title  to  the  lands  thrown  under  water,(&)  although  when  the 
sea  makes  gradual  encroachments,  the  right  of  the  owner  of  the  land 
encroached  on  is  as  gradually  transferred  to  the  Crown. (?)  And  in  the 
same  manner  when  the  sea  gradually  retires,  the  right  of  the  Crown  is 
as  gradually  transferred  to  the  owner  of  the  land  adjoining  the  coast.(w) 

(b)  Grose  v.  West.  7  Taunt.  39  (E.  C.  L.  R.  vol.  2)  ;  Doe  d.  Barrett  v.  Kemp,  2  Bing. 
N.  C.  102  (E.  C.  L.  R.  vol.  29). 

(c)  Com.  Dig.  tit.  Chimin,  (D.  6)  ;  Dawes  v.  Hawkins,  8  C.  B.,  N.  S.  848  (E.  C.  L.  R. 
vol.  98). 

(d)  Steel  v.  Prickett,  2  Stark.  468  (E.  C.  L.  R.  vol.  3). 

(e)  Hale  de  jure  maris,  ch.  1  ;  Wishart  v.  Wylie,  2  Stuart,  Thomson,  Milne,  Morison 
&  Kinnear's  Scotch  Cases,  H.  L.  68;  Bickett  v.  Morris,  L.  Rep.  1  Scotch  Appeals  47; 
Lord  v.  The  Commissioners  for  the  City  of  Sydney,  12  Moore's  P.  C.  Cases  473. 

(/)  Hale  de  jure  maris,  ch.  4,  p.  13  ;  Gann  v.  The  Freefishers  of  Whitstable,  11  H.  of 
L.  Cas.  192. 

(g)  Attorney-General  v.  Chambers,  4  De  Gex,  M.  &  G.  206  ;  The  Queen  v.  Gee,  1 
Ellis  &  Ellis  1068  (E.  C.  L.  R.  vol.  102). 

(h)  Scratton  v.  Brown,  4  B.  &  C.  485,  495  (E.  C.  L.  R.  vol.  10). 

(»)  The  Duke  of  Beaufort  v.  The  Mayor,  &c,  of  Swansea,  3  Ex.  413  ;  Calmady  v. 
Rowe,  6  C.  B.  861  (E.  C.  L.  R.  vol.  60). 

(k)  2  Black.  Com.  262. 

(I)  Re  Hull  &  Selby  Railway,  5  Mee.  &  Wels.  327. 

(m)  2  Black.  Com.  262  ;  The  King  v.  Lord  Yarborough,  3  B.  &  C.  91  (E.  C.  L.  R.  vol. 
10);  5  Bing.  163  (E.  C.  L.  R.  vol.  15). 


OF   HEREDITAMENTS    PURELY   INCORPOREAL.  328 

But  a  sudden  dereliction  of  the  sea  does  not  deprive  the  Crown  of  its 
title  to  the  soil.(w) 

2.  Incorporeal  hereditaments  appurtenant  to  corporeal  hereditaments 
are  not  very  often  met  with.  They  consist  of  such  incorporeal  heredita- 
ments as  are  not  naturally  and  originally  appendant  to  corporeal  heredi- 
taments, but  have  been  annexed  to  them,  either  by  some  express  deed  of 
grant  or  by  prescription  from  long  enjoyment.  Rights  of  common  and 
rights  of  way  or  passage  over  the  property  of  another  person  are  the 
principal  kinds  of  incorporeal  hereditaments  usually  found  appurtenant 
to  lands.  When  thus  annexed,  they  will  pass  by  a  conveyance  of  the 
lands  to  which  they  have  been  annexed,  without  mention  of  the  appurte- 
nances ;(o)  although  these  words,  "with  the  appurtenances,"  are  usually 
inserted  in  conveyances,  for  the  purpose  of  distinctly  showing  an  in- 
tention to  comprise  such  incorporeal  hereditaments  of  this  nature  as 
may  belong  to  the  lands.  But  if  such  rights  of  common  or  *of  p^tn 
way,  though  usually  enjoyed  with  the  lands,  should  not  be 
strictly  appurtenant  to  them,  a  conveyance  of  the  lands  merely,  with 
their  appurtenances,  without  mentioning  the  rights  of  common  or  way, 
will  not  be  sufficient  to  comprise  them.(^)  It  is,  therefore,  usual  in  con- 
veyances to  insert  at  the  end  of  the  "  parcels "  or  description  of  the 
property  a  number  of  "general  words,"  in  which  are  comprised  not  only 
all  rights  of  way  and  common,  &c,  which  may  belong  to  the  premises, 
but  also  such  as  may  be  therewith  used  or  enjoyed. (q) 

3.  Such  incorporeal  hereditaments  as  stand  separate  and  alone  are 
generally  distinguished  from  those  which  are  appendant  or  appurtenant, 
by  the  appellation  in  gross.  Of  these  the  first  we  may  mention  is  a 
seignory  in  gross,  which  is  a  seignory  that  has  been  severed  from  the 
demesne  lands  of  the  manor,  to  which  it  was  anciently  appendant.(r) 
It  is  now  become  quite  unconnected  with  anything  corporeal,  and, 
existing  as  a  separate  subject  of  transfer,  it  must  be  conveyed  by  deed 
of  grant. 

(«)  2  Black.  Com.  262.  (o)  Co.  Litt.  121  b. 

(p)  Harding  v.  Wilson,  2  B.  &  Cres.  96  (E.  C.  L.  R.  vol.  9) ;  Barlow  v.  Rhodes,  1  Cro. 
&  M.  439.  See  also  James  v.  Plant,  4  Adol.  &  Ellis  749  (E.  C.  L.  R.  vol.  31) ;  Hinch- 
liffe  v.  Earl  of  Kinnoul,  5  New  Cases  1 ;  Pheysey  v.  Vicary,  16  Mee.  &  Wels.  484;  Ack- 
royd  v.  Smith,  10  C.  B.  164  (E.  C.  L.  R.  vol.  70)  ;  Worthington  v.  Gimson,  Q.  B.  6  Jur. 
N.  S.  1053  ;  2  Ellis  &  Ellis  618  (E.  C.  L.  R.  vol.  105)  ;  Baird  v.  Fortune,  H.  L.,  10  W. 
R.  2  ;  7  Jur.  N.  S.  926;  Wardle  v.  Brocklehurst,  1  Ellis  &  Ellis  1058  (E.  C.  L.  R.  vol. 
102)  ;  Watts  v.  Kelson,  L.  R.  6  Ch.  166  ;  Kay  v.  Oxley,  L.  R.  10  Q.  B.  360. 

(q)  Ante,  p.  191.  (r)  1  Scriv.  Cop.  5. 

20 


329  OF   INCORPOREAL   HEREDITAMENTS. 

The  next  kind  of  separate  incorporeal  hereditaments  is  a  rent  seek 
(redditus  siccus),  a  dry  or  barren  rent,  so  called  because  no  distress 
could  formerly  be  made  for  it.(s)  This  kind  of  rent  affords  a  good 
example  of  the  antipathy  of  the  ancient  law  to  any  inroad  on  the  then 
..  prevailing  system  of  tenures.  If  a  landlord  *granted  his 
L  J  seignory  or  his  reversion,  the  rent  service,  which  was  incident 
to  it,  passed  at  the  same  time.  But  if  he  should  have  attempted  to 
convey  his  rent,  independently  of  the  seignory  or  reversion  to  which  it 
was  incident,  the  grant  would  have  been  eifectual  to  deprive  himself  of 
the  rent,  but  not  to  enable  his  grantee  to  distrain  for  it.(t)  It  would 
have  been  a  rent  seek.  Rent  seek  also  occasionally  arose  from  grants 
being  made  of  rent  charges,  to  be  hereafter  explained,  without  any  clause 
of  distress.(w)  But  now,  by  an  act  of  Geo.  II., (a;)  a  remedy  by  distress  is 
given  for  rent  seek,  in  the  same  manner  as  for  rent  reserved  upon  lease. 

Another  important  kind  of  separate  incorporeal  hereditament  is  a  rent 
charge,  which  arises  on  a  grant  by  one  person  to  another  of  an  annual 
sum  of  money,  payable  out  of  certain  lands  in  which  the  grantor  may 
have  any  estate.  The  rent  charge  cannot,  of  course,  continue  longer 
than  the  estate  of  the  grantor ;  but,  supposing  the  grantor  to  be  seised 
in  fee  simple,  he  may  make  a  grant  of  a  rent  charge  for  any  estate  he 
pleases,  giving  to  the  grantee  a  rent  charge  for  a  term  of  years,  or  for 
his  life,  or  in  tail,  or  in  fee  simple.(?/)  For  this  purpose  a  deed  is 
absolutely  necessary ;  for  a  rent  charge,  being  a  separate  incorporeal 
hereditament,  cannot,  according  to  the  general  rule,  be  created  or  trans- 
ferred in  any  other  way,(z)  unless  indeed  it  be  given  by  will.  The  cre- 
ation of  a  rent  charge  or  annuity,  for  any  life  or  lives,  or  for  any  term  of 
years  or  greater  estate  determinable  on  any  life  or  lives,  was  also,  until 
recently,  required,  under  certain  circumstances,  to  be  attended  with  the 
enrolment,  in  the  Court  of  Chancery,  of  a  memorial  of  certain  particulars. 
*These  annuities  were  frequently  granted  by  needy  persons  to 
L  °  ^  money  lenders,  in  consideration  of  the  payment  of  a  sum  of 
money,  for  which  the  annuity  or  rent  charge  served  the  purpose  of  an 
exorbitant  rate  of  interest.  In  order,  therefore,  to  check  these  pro- 
ceedings by  giving  them  publicity,  it  was  provided  that,  as  to  all  such 
annuities,  granted  for  pecuniary  consideration  or  money's  worth(a)  (un- 

(s)  Litt.  s.  218.  (t)  Litt.  ss.  225,  226,  227,  228,  572. 

(u)  Litt.  ss.  217,  218.  (z)  Stat.  4  Geo.  II.  c.  28,  s.  5. 

(y)  Litt.  ss.  217,  218.  (z)  Litt.  ubi  sup. 

(a)  Tetley  v.  Tetley,  4  Bing.  214  (E.  C.  L.  R.  vol.  13)  ;  Mestayer  v.  Biggs,  1  Cro.  Mee. 
&  Rose.  110  ;  Few  v.  Backhouse,  8  Ad.  &  Ell.  789  (E.  C.  L.  R.  vol.  35)  ;  s.  c.  1  Per.  & 
Dav.  34;  Doe  d.  Church  v.  Pontifex,  9  C.  B.  229  (E.  C.  L.  R.  vol.  67). 


OF   HEREDITAMENTS    PURELY    INCORPOREAL.  331 

less  secured  on  lands  of  equal  or  greater  annual  value  than  the  annuity, 
and  of  which  the  grantor  was  seised  in  fee  simple,  or  fee  tail  in  posses- 
sion), a  memorial  stating  the  date  of  the  instrument,  the  names  of  the 
parties  and  witnesses,  the  persons  for  whose  lives  the  annuity  was  granted, 
the  person  by  whom  the  same  was  to  be  beneficially  received,  the  pecu- 
niary consideration  for  granting  the  same,  and  the  annual  sum  to  be  paid, 
should,  within  thirty  days  after  the  execution  of  the  deed,  be  enrolled  in 
the  Court  of  Chancery  ;  otherwise  the  same  should  be  null  and  void  to  all 
intents  and  purposes.(6)     But  as  these  annuities  were  only  granted  for 
the  sake  of  evading  the  Usury  Laws,  the  same  statute  which  has  repealed 
those  lawsfc)  has  also  repealed  the  statutes  by  which  memorials  of  such 
annuities  were  required  to  be  enrolled.     A  subsequent  statute,  however, 
provides   that  any  annuity  or  rent  charge  granted  after  the  26th  of 
April,  1855,  the  date  of  the  passing  of  the  act,  otherwise  than  by  mar- 
riage settlement  or  will,  for  a  life  or  lives,  or  for  any  estate  determinable 
on  a  life  or  lives,  shall  not  affect  any  lands,  tenements,  or  hereditaments, 
as  to  purchasers,  mortgagees,  or  creditors,  until  the  particulars  mentioned 
in  the  act  are  registered  in  the  *  Court  of  Common  Pleas,  now  the    j-*832] 
Common  Pleas  Division  of  the  High  Court,  where  they  are  en- 
tered in  alphabetical  order  by  the  name  of  the  person  whose  estate  is 
intended  to  be  affected.(d)     A  search  for  annuities  is  accordingly  made 
in  this  registry  on  every  purchase  of  lands,  in  addition  to  the  searches 
for  judgment,  crown  debts,  executions,  and  lis  pendens.(e) 

In  settlements  where  rent  charges  are  often  given  by  way  of  pin-money 
and  jointure,  they  are  usually  created  under  a  provision  for  the  purpose 
contained  in  the  Statute  of  Uses.(/)  The  statute  directs  that,  where  any 
persons  shall  stand  seised  of  any  lands,  tenements,  or  hereditaments,  m 
fee  simple  or  otherwise,  to  the  use  and  intent  that  some  other  person  or 
persons  shall  have  yearly  to  them  and  their  heirs,  or  to  them  and  their 
assigns,  for  term  of  life,  or  years,  or  some  other  special  time,  any  annual 
rent,  in  every  such  case  the  same  persons,  their  heirs  and  assigns,  that 
have  such  use  to  have  any  such  rent  shall  be  adjudged  and  deemed  in 
possession  and  seisin  of  the  same  rent  of  such  estate  as  they  had  in  the 
use  of  the  rent ;  and  they  may  distrain  for  non-payment  of  the  rent  in 
their  own  names.     From  this  enactment  it  follows  that  if  a  conveyance 

(b)  Stat.  53  Geo.  III.  c.  141,  explained  and  amended  by  stats.  3  Geo.  IV.  c.  92,  and  7 
Geo.  IV.  c.  75,  which  rendered  sufficient  a  memorial  of  the  names  of  the  witnesses  as 
they  appeared  signed  to  their  attestations. 

(e)  Stat.  17  &  18  Vict.  c.  90.  (<*)  Stat.  18  &  19  Vict.  c.  15,  ss.  12,  14. 

00  Ante,  pp.  88,  91,  93.  (/)  Stat.  27  Hen.  VIII.  c.  10,  ss.  4,  5. 


332  OF    INCORPOREAL    HEREDITAMENTS. 

of  lands  be  now  made  to  A.  and  his  heirs, — to  the  use  and  intent  that  B. 
and  his  assigns  may,  during  his  life,  thereout  receive  a  rent  charge,— B. 
will  be  entitled  to  the  rent  charge,  in  the  same  manner  as  if  a  grant  of 
the  rent  charge  had  been  duly  made  to  him  by  deed.  The  above  enact- 
ment, it  will  be  seen,  is  similar  to  the  prior  clause  of  the  Statute  of  Uses 
relating  to  uses  of  estates,(#)  and  is  merely  a  carrying  out  of  the  same 
design,  which  was  to  render  every  use,  then  cognizable  only  in  Chancery, 
an  estate  or  interest  within  the  ^jurisdiction  of  the  courts  of 
[*333]  iaw  ^  j>ut  jn  tliis  case  also,  as  well  as  in  the  former,  the  end 
of  the  statute  has  been  defeated.  For  a  conveyance  of  land  to  A.  and 
his  heirs,  to  the  use  that  B.  and  his  heirs  may  receive  a  rent  charge,  in 
trust  for  C.  and  his  heirs,  will  now  be  laid  hold  of  under  the  equitable 
doctrines  of  the  Court  of  Chancery  for  C.'s  benefit,  in  the  same  manner 
as  a  trust  of  an  estate  in  the  land  itself.  The  statute  vests  the  legal 
estate  in  the  rent  in  B. ;  and  C.  takes  nothing  in  a  court  of  law,  because 
the  trust  for  him  would  be  a  use  upon  a  use.(i)  But  C.  has  the  entire 
beneficial  interest ;  for  he  is  possessed  of  the  rent  charge  for  an  equitable 
estate  in  fee  simple. 

In  ancient  times  it  was  necessary,  on  every  grant  of  a  rent  charge,  to 
give  an  express  power  to  the  grantee  to  distrain  on  the  premises  out  of 
which  the  rent  charge  was  to  issue.(&)  If  this  power  were  omitted,  the 
rent  was  merely  a  rent  seek.  Rent  service,  being  an  incident  of  tenure, 
might  be  distrained  for  by  common  right ;  but  rent  charges  were  matters 
the  enforcement  of  which  was  left  to  depend  solely  on  the  agreement  of 
the  parties.  But  since  a  power  of  distress  has  been  attached  by  parlia- 
ment^) to  rents  seek,  as  well  as  to  rents  service,  an  express  power  of 
distress  is  not  necessary  for  the  security  of  a  rent  charge.(m)  Such  a 
power,  however,  is  usually  granted  in  express  terms.  In  addition  to  the 
clause  of  distress,  it  is  also  usual,  as  a  further  security,  to  give  to  the 
grantee  a  power  to  enter  on  the  premises  after  default  has  been  made  in 
r*334.1  payment  for  a  certain  number  of  days,  and  to  receive  *the  rents 
L  '  -*  and  profits  until  all  the  arrears  of  the  rent  charge,  together  with 
all  expenses,  have  been  duly  paid.1 

(g)  Ante,  p.  157.  (A)  Ante,  p.  159. 

(i)  Ante,  p.  160.  (k)  Litt.  s.  218. 

(I)  Stat.  4  Geo.  II.  c.  28,  s.  5.  See  Johnson  v.  Faulkner,  2  Q.  B.  925,  935  (E.  C.  L. 
R.  vol.  42) ;  Miller  v.  Green,  8  Bing.  92  (E.  C.  L.  R.  vol.  21)  ;  2  Cro.  &  Jerv.  142  ;  2 
Tyr.  1. 

(m)  Saward  v.  Anstey,  2  Bing.  519  (E.  C.  L.  R.  vol.  9) ;  Buttery  v.  Robinson,  3  Bing. 
392  (E.  C.  L.  R.  vol.  11) ;  Dodds  v.  Thompson,  L.  Rep.  1  C.  P.  133. 

1  See  ante,  note  to  page  124. 


OF   HEREDITAMENTS    PURELY   INCORPOREAL.  334 

Incorporeal  hereditaments  are  the  subjects  of  estates  analogous  to 
those  which  may  be  holden  in  corporeal  hereditaments.  If  therefore  a 
rent  charge  should  be  granted  for  the  life  of  the  grantee,  he  will  possess 
an  estate  for  life  in  the  rent  charge.  Supposing  that  he  should  alienate 
this  life  estate  to  another  party,  without  mentioning  in  the  deed  of  grant 
the  heirs  of  such  party,  the  law  formerly  held  that,  in  the  event  of  the 
decease  of  the  second  grantee  in  the  lifetime  of  the  former,  the  rent 
charge  became  extinct  for  the  benefit  of  the  owner  of  the  lands  out  of 
which  it  issued. (n)  The  former  grantee  was  not  entitled  because  he  had 
parted  with  his  estate ;  the  second  grantee  was  dead,  and  his  heirs  were 
not  entitled  because  they  were  not  named  in  the  grant.  Under  similar 
circumstances,  we  have  seen(o)  that,  in  the  case  of  a  grant  of  corporeal 
hereditaments,  the  first  person  that  might  happen  to  enter  upon  the 
premises  after  the  decease  of  the  second  grantee  had  formerly  a  right  to 
hold  possession  during  the  remainder  of  the  life  of  the  former.  But 
rents  and  other  incorporeal  hereditaments  are  not  in  their  nature  the 
subjects  of  occupancy  ;(p)  they  do  not  lie  exposed  to  be  taken  possession 
of  by  the  first  passer-by.  It  was  accordingly  thought  that  the  statutes, 
which  provided  a  remedy  in  the  case  of  lands  and  other  corporeal  hered- 
itaments, were  not  applicable  to  the  case  of  a  rent  charge,  but  that  it 
became  extinct  as  before  mention ed.(g-)  By  a  modern  decision,  however, 
the  construction  of  these  statutes  was  extended  to  this  case  r#oqr-i 
*also  ;(r)  and  now  the  act  for  the  amendment  of  the  laws  with 
respect  to  wills,(s)  by  which  these  statutes  have  been  repealed,(£)  permits 
every  person  to  dispose  by  will  of  estates  pur  autre  vie,  whether  there 
shall  or  shall  not  be  any  special  occupant  thereof,  and  whether  the  same 
shall  be  a  corporeal  or  an  incorporeal  hereditament  \{u)  and  in  case  there 
shall  be  no  special  occupant,  the  estate,  whether  corporeal  or  incorporeal, 
shall  go  to  the  executor  or  administrator  of  the  party ;  and  coming  to 
him,  either  by  reason  of  a  special  occupancy,  or  by  virtue  of  the  act,  it 
shall  be  applied  and  distributed  in  the  same  manner  as  the  personal 
estate  of  the  testator  or  intestate. (a;) 

A  grant  of  an  estate  tail  in  a  rent  charge  scarcely  ever  occurs  in 
practice.     But  grants  of  rent  charges  for  estates  in  fee  simple  are  not 

(n)  Bac.  Abr.  tit.  Estate  for  Life  and  Occupancy  (B). 

(o)  Ante,  p.  20.  (p)  Co.  Litt.  41  b,  388  a.. 

(q)  2  Black.  Com.  260. 

(r)  Bearpark  v.  Hutchinson,  7  Bing.  178  (E.  C.  L.  R.  vol.  20). 

(s)  7  Will.  IV.  &  1  Vict.  c.  26.  (t)  Sect.  2. 

(u)  Sect.  3. 

(z)  Sect.  6;  Reynolds  v.  Wright,  25  Beav.  100. 


335  OF   INCORPOREAL   HEREDITAMENTS. 

uncommon,  especially  in  the  towns  of  Liverpool  and  Manchester,  where 
it  is  the  usual  practice  to  dispose  of  an  estate  in  fee  simple  in  lands  for 
building  purposes  in  consideration  of  a  rent  charge  in  fee  simple  by  way 
of  ground  rent,  to  be  granted  out  of  the  premises  to  the  original  owner. 
These  transactions  are  accomplished  by  a  conveyance  from  the  vendor 
to  the  purchaser  and  his  heirs,  to  the  use  that  the  vendor  and  his  heirs 
may  thereout  receive  the  rent  charge  agreed  on,  and  to  the  further  use 
that,  if  it  be  not  paid  within  so  many  days,  the  vendor  and  his  heirs 
may  distrain,  and  to  the  further  use  that,  in  case  of  non-payment  within 
so  many  more  days,  the  vendor  and  his  heirs  may  enter  and  hold 
possession  till  all  arrears  and  expenses  are  paid ;  and  subject  to  the 
rent  charge,  and  to  the  powers  and  remedies  for  securing  payment 
l~*33fil  tm3re°f>  to  the  use  °f  tne  purchaser,  *his  heirs  and  assigns 
forever.  The  purchaser  thus  acquires  an  estate  in  fee  simple 
in  the  lands,  subject  to  a  perpetual  rent  charge  payable  to  the  vendor, 
his  heirs  and  assigns. {y)  It  should,  however,  be  carefully  borne  in 
mind  that  transactions  of  this  kind  are  very  different  from  those 
grants  of  fee  simple  estates  which  were  made  in  ancient  times  by  lords 
of  manors,  and  from  which  quit  or  chief  rents  have  arisen.  These  latter 
rents  are  rents  incident  to  tenure,  and  may  be  distrained  for  of  common 
right  without  any  express  clause  for  the  purpose.  But  as  we  have 
seen,(z)  since  the  passing  of  the  statute  of  Quia  emptores{a)  it  has  not  been 

{y)  By  stat.  17  &  18  Vict.  c.  83,  conveyances  of  any  kind,  in  consideration  of  an 
annual  sum  payable  in  perpetuity,  or  for  any  indefinite  period,  were  subject  to  the 
following  duties  : — 

Where  the  yearly  sum  should  not  exceed  £5 
Should  exceed  £5  and  not  exceed    10 


10 

15 

15 

20 

20 

25 

25 

50 

50 

75 

75 

100 

And  where  th 

b  sum  should  excee< 

1£100 

then  for 

every    £50, 

and 

also   for 

any 

fractional 

part 

of  £50 

£0     6 

0 

0  12 

0 

0  18 

0 

1     4 

0 

1   10 

0 

3     0 

0 

4   10 

0 

6     0 

0 

3     0     0 

But  these  duties  are  now  repealed  by  stat.  33  &  34  Vict.  c.  99  ;  and  the  Stamp  Act, 
1870  (stat.  33  &  34  Vict.  c.  97),  now  provides  (sect.  72)  that,  where  the  consideration 
or  any  part  of  the  consideration  for  a  conveyance  on  sale  consists  of  money  payable 
periodically  in  perpetuity  or  for  any  indefinite  period  not  terminable  with  life,  such 
conveyance  is  to  be  charged  in  respect  of  such  consideration  with  ad  valorem  duty  on 
the  total  amount,  which  will  or  may,  according  to  the  terms  of  sale,  be  payable  during 
the  period  of  twenty  years  next  after  the  day  of  the  date  of  such  instrument. 

(z)  Ante,  pp.  62,  118.  (a)  18  Edw.  I.  c.  1. 


OF   HEREDITAMENTS    PURELY   INCORPOREAL. 


336 


lawful  for  any  person  to  create  a  tenure  in  fee  simple.     The  modern 
rents   of  which  we  are  now  speaking,  are  accordingly  mere  rent  charges, 
and  in  ancient  days  would  have  required  express  clauses  of  distress 
to  make  *them  secure.1     They  were  formerly  considered  in  law    |-*337-j 
as  against  common  right,(b)  that  is,  as  repugnant  to  the  feudal 
policy    which  encouraged  such  rents  only  as  were  incident  to  tenure. 
A  rent  charge  was  accordingly  regarded  as  a  thing  entire  and  indivis- 
ible   unlike  rent  service,  which  was  capable  of  apportionment.     And 
from  this  property  of  a  rent  charge,  the  law,  in  its  hostility  to  such 
charts,  drew  the  following  conclusion  :  that  if  any  part  of  the  land,  out 
of  which  a  rent  charge  issued,  were  released  from  the  charge  by  the 
owner  of  the  rent,  either  by  an  express  deed  of  release,  or  virtually  by 
his  purchasing  part  of  the  land,  all  the  rest  of  the  land  should  enjoy  the 
same  benefit  and  be  released  also.(C)     If,  however,  any  portion  of  the 
land  charged  should  descend  to  the  owner  of  the  rent  as  heir  at  law,  the 
rent  would  not  thereby  have  been  extinguished,  as  in  the  case  of  a  pur- 
chase, but  would  have  been  apportioned  according  to  the  value  of  the 
land ;  because  such  portion  of  the  land  came  to  the  owner  of  the  rent, 
not  by  his  own  act,  but  by  the  course  of  law.(d)     But  it  is  now  pro- 
vided^) that  the  release  from  a  rent  charge  of  part  of  the  hereditaments 
charged  therewith  shall  not  extinguish  the  whole  rent  charge,  but  shall 
operate  only  to  bar  the  right  to  recover  any  part  of  the  rent  charge  out 
of  the  hereditaments  released ;  without  prejudice,  nevertheless,  to  the 
rights  of  all  persons  interested  in  the  hereditaments  remaining  unre- 
leased,  and  not  concurring  in  or  confirming  the  release.    A  recent  statute 
empowers  the  Inclosure  Commissioners  to  apportion  rents  of  every  kind 
on  the  application  of  any  person  interested  in  the  lands  and  in  the 
rent.(/) 

The  Bankruptcy  Act,  1870,  provides  for  the  *disclaimer  by    r^ggg-, 
the  trustee  for  the  creditors  of  any  property  that  is  not  readily 

(b)  Co.  Litt.  147  b. 

(c)  Litt  s.  222  ;  Dennett  v.  Pass,  1  New  Cases  388  (E.  C.  L.  R.  vol.  27). 

(d)  Litt.  s.  224.  (0  Stat.  22  &  23  Vict.  c.  35,  s.  10. 
(/)  Stat.  17  &  18  Vict.  c.  97,  ss.  10-14. 


»  It  was,  however,  decided  in  Pennsyl-  rents  reserved  by  the  grantor  upon  a  con- 

vania,  in  the  case  of  Ingersoll  v.  Sergeant,  veyance  of  an  estate  in  fee   simple  (see 

1  Wharton  337,  that  the   statute  of  Quia  ante,  in  note  to  page  124)  are  rents  service, 

emptores  was  never  in  force  in  that  State  incident  to  tenure,  distrainable  of  common 

(see  ante,  p.  118,  note,  as  also  the  case  of  right,  and  the  subjects  of  apportionment. 
Franciscus  v.  Reigart,    4  Watts    98,    and  .  R- 

Kenege  v.  Elliott,  9   Id.    262),   and   that 


338  OF   INCORPOREAL    HEREDITAMENTS. 

salable,  by  reason  of  its  binding  the  possessor  thereof  to  the  perform- 
ance of  any  onerous  act,  or  to  the  payment  of  any  sum  of  money.  But 
he  cannot  disclaim,  if  an  application  in  writing  has  been  made  to  him  by 
any  person  interested  in  the  property,  requiring  him  to  decide  whether 
he  will  disclaim  or  not,  and  he  has  for  a  period  of  not  less  than  twenty- 
eight  days  after  the  receipt  of  such  application,  or  such  further  time  as 
may  be  allowed  by  the  court,  declined  or  neglected  to  give  notice  whether 
he  disclaims  the  same  or  not.(g) 

The  rent  charges  of  which  we  are  speaking  are  usually  further  secured 
by  a  covenant  for  payment,  entered  into  by  the  purchaser  in  the  deed  by 
which  they  are  granted.  In  order  to  exonerate  the  executors  or  admin- 
istrators of  such  a  purchaser  from  the  perpetual  liability  under  this 
covenant,  it  is  now  provided(/i)  that  where  an  executor  or  administrator, 
liable  as  such  to  the  rent  or  covenants  contained  in  any  conveyance  on 
chief  rent  or  rent  charge,  or  agreement  for  such  conveyance,  granted  to 
or  made  with  the  testator  or  intestate  whose  estate  is  being  administered, 
shall  have  satisfied  all  then  subsisting  liabilities,  and  shall  have  set  apart 
a  sufficient  fund  to  answer  any  future  claim  that  may  be  made  in  respect 
of  any  fixed  and  ascertained  sum  agreed  to  be  laid  out  on  the  property 
(although  the  period  for  laying  out  the  same  may  not  have  arrived),  and 
shall  have  conveyed  the  property,  or  assigned  the  agreement  to  a  pur- 
chaser, he  may  distribute  the  residuary  personal  estate  of  the  deceased 
without  appropriating  any  part  thereof  to  meet  any  future  liability 
under  such  Conveyance  or  agreement.  But  this  is  not  to  prej- 
L  J  udice  the  right  of  the  grantor  or  those  claiming  under  him  to 
follow  the  assets  of  the  deceased  into  the  hands  of  the  persons  amongst 
whom  such  assets  may  have  been  distributed. 

Although  rent  charges  and  other  self-existing  incorporeal  hereditaments 
of  the  like  nature  are  no  favorites  with  the  law,  yet,  whenever  it  meets 
with  them,  it  applies  to  them,  as  far  as  possible,  the  same  rules  to  which 
corporeal  hereditaments  are  subject.  Thus,  we  have  seen  that  the  estates 
which  may  be  held  in  the  one  are  analogous  to  those  which  exist  in  the 
other.  So  estates  in  fee  simple,  both  in  the  one  and  in  the  other,  may 
be  aliened  by  the  owner,  either  in  his  lifetime  or  by  his  will,  to  one 
person  or  to  several  as  joint  tenants  or  tenants  in  common, (i)  and,  on 

(ff)  Stat.  32  &  33  Vict.  c.  71,  ss.  23,  24.    The  former  act,  12  &  13  Vict.  c.  106,  s.  145, 
the  provisions  of  which  were  very  imperfect,  was  repealed  by  stat.  32  &  33  Vict.  c.  83. 
{h)  Stat.  22  &  23  Vict.  c.  35,  s.  28. 
(i)  Rivis  v.  Watson,  5  M.  &  W.  255. 


OF   HEREDITAMENTS    PURELY   INCORPOREAL.  839 

his  intestacy,  will  descend  to  the  same  heir  at  law.  But  in  one  respect 
the  analogy  fails.  Land  is  essentially  the  subject  of  tenure ;  it  may 
belong  to  a  lord,  but  be  holden  by  his  tenant,  by  whom  again  it  may  be 
sublet  to  another ;  and  so  long  as  rent  is  rent  service,  a  mere  incident 
arising  out  of  the  estate  of  the  payer,  and  belonging  to  the  estate  of  the 
receiver,  so  long  may  it  accompany,  as  accessory,  its  principal,  the  estate 
to  which  it  belongs.  But  the  receipt  of  a  rent  charge  is  accessory  or 
incident  to  no  other  hereditament.  True  a  rent  charge  springs  from  and 
is  therefore  in  a  manner  connected  with  the  land  on  which  it  is  charged ; 
but  the  receiver  and  owner  of  a  rent  charge  has  no  shadow  of  interest 
beyond  the  annual  payment,  and  in  the  abstract  right  to  this  payment 
his  estate  in  the  rent  consists.  Such  an  estate  therefore  cannot  be 
subject  to  any  tenure.  The  owner  of  an  estate  in  a  rent  charge  conse- 
quently owes  no  fealty  to  any  lord,  neither  can  he  be  subject,  in  respect 
of  his  *estate,  to  any  rent  as  rent  service;  nor,  from  the  nature  r*Q.im 
of  the  property,  could  any  distress  be  made  for  such  rent  service 
if  it  were  reserved. (&)  So  if  the  owner  of  an  estate  in  fee  simple  in  a 
rent  charge  should  die  intestate,  and  without  leaving  any  heirs,  his  estate 
cannot  escheat  to  his  lord,  for  he  has  none.  It  will  simply  cease  to  exist, 
and  the  lands  out  of  which  it  was  payable  will  thenceforth  be  discharged 
from  its  payment. (I) 

Another  kind  of  separate  incorporeal  hereditament  which  occasionally 
occurs  is  a  right  of  common  in  gross.  This  is,  as  the  name  implies,  a 
right  of  common  over  lands  belonging  to  another  person,  possessed  by 
a  man,  not  as  appendant  or  appurtenant  to  the  ownership  of  any  lands 
of  his  own,  but  as  an  independent  subject  of  property.(m)  Such  a  right 
of  common  has  therefore  always  required  a  deed  for  its  transfer. 

Another  important  kind  of  separate  incorporeal  hereditament  is  an 
advowson  in  gross.1     An  advowson  is  a  perpetual  right  of  presentation 

(k)  Co.  Litt.  47  a,  144  a;  2  Black.  Com.  42.  But  it  is  said  that  the  queen  may- 
reserve  a  rent  out  of  an  incorporeal  hereditament,  for  which,  by  her  prerogative,  she 
may  distrain  on  all  the  lands  of  the  lessee.  Co.  Litt.  47  a,  note  (1)  ;  Bac.  Abr.  tit. 
Rent  (B). 

(I)  Co.  Litt.  298  a,  n.  (2).  (m)  2  Black.  Com.  33,  34. 

1  It  is  hardly  necessary  to  mention  that,  subject  here  treated  of  will  be  found  in 

by  reason  of  there  being  no  Established  Smith  on  Contracts,  pp.  174,  183,  as  also 

Church  in  the  United  States,  the  remain-  in  Sugden's  "Letters  to  a  Man  of   Prop- 

der  of  this   chapter   has    no   application  erty,"  Letter  VIII.  R. 

here;    but  an  excellent  summary  of  the 


340  OF   INCORPOREAL   HEREDITAMENTS. 

to  an  ecclesiastical  benefice.  The  owner  of  the  advowson  is  termed  the 
patron  of  the  benefice ;  but,  as  such,  he  has  no  property  or  interest  in 
the  glebe  or  tithes,  which  belong  to  the  incumbent.  As  patron  he  simply 
enjoys  a  right  of  nomination  from  time  to  time,  as  the  living  becomes 
vacant.  And  this  right  he  exercises  by  a  presentation  to  the  bishop  of 
some  duly  qualified  clerk  or  clergyman,  whom  the  bishop  is  accordingly 
bound  to  institute  to  the  benefice,  and  to  cause  him  to  be  inducted  into 
r*34.n    it.(w)     When  the  advowson  belongs  to  the  bishop,  the  forms  *of 

J  presentation  and  institution  are  supplied  by  an  act  called  colla- 
tion.^) In  some  rare  cases  of  advowsons  donative,  the  patron's  deed  of 
donation  is  alone  sufficient. (jo)  And  by  the  Stamp  Act,  1870,(y)  every 
appointment,  whether  by  way  of  donation,  presentation,  or  nomination, 
and  admission,  collation,  or  institution  to  or  license  to  hold  any  ecclesi- 
astical benefice,  dignity,  or  promotion,  or  any  perpetual  curacy,  is  subject 
to  an  ad  valorem  duty  according  to  the  subjoined  table.(r)  Where  the 
patron  is  entitled  to  the  advowson  as  his  private  property,  he  is  empow- 
ered by  an  act  of  parliament  of  the  reign  of  George  IV. (s)  to  present 
any  clerk  under  a  previous  agreement  with  him  for  his  resignation  in 
favor  of  any  one  person  named,  or  in  favor  of  one  of  two(t)  persons,  each 
of  them  being  by  blood  or  marriage  an  uncle,  son,  grandson,  brother, 
nephew,  or  grand-nephew  of  the  patron,  or  one  of  the  patrons  beneficially 
entitled.  One  part  of  the  instrument  by  which  the  engagement  is  made 
must  be  deposited  within  two  calendar  months  in  the  office  of  the  regis- 
r*3421    trar  °^  ^e  diocese,(it)  and  the  resignation  must  *refer  to  the 

J  engagement,  and  state  the  name  of  the  person  for  whose  benefit 
it  is  made.(a;) 

(re)  1  Black.  Cora.  190,  191.  (o)  2  Black.  Com.  22. 

(p)  2  Black.  Com.  23.  (g)  Stat.  33  &  34  Vict.  c.  97. 

(r)  If  the  net  yearly  value  thereof  exceeds — 

£50  and  does  not  exceed     £100  .  . 

100       "  "  150  .  . 

150       "  "  200  .  . 

200        "  "  250  .  . 

250       »  «  300 

And  also  (if  such  yearly  value  exceeds   £300)       .  . 
And  also  (where  such  value  shall  exceed  £300)       .  . 
for  every  £100  thereof  over  and  above  £200, 
a  further  duty  of 
Exemptions. — Admission,  collation,  institution,  or  license  proceedin 
stamped  donation,  presentation,  or  nomination. 
(s)  Stat.  9  Geo.  IV.  c.  94. 

(/)  The  act  reads  one  or  two,  but  this  is  clearly  an  error. 
(«)  Stat.  9  Geo.  IV.  c.  94,  s.  4.  (z)  Stat.  9  Geo.  IV.  c.  94,  s.  5. 


£1     0 

0 

2     0 

0 

3     0 

0 

4     0 

0 

5     0 

0 

7     0 

0 

5     0 

0 

ceeding 

upon  a  duly 

OF   HEREDITAMENTS    PURELY    INCORPOREAL.  342 

Advowsons  are  principally  of  two  kinds — Advowsons  of  rectories,  and 
advowsons   of  vicarages.     The  history  of  advowsons  of  rectories  is  in 
many  respects  similar  to  that  of  rents  and  of  rights  of  common.     In  the 
very  early  ages  of  our  history  advowsons  of  rectories  appear  to  have  been 
almost  always  appendant  to  some  manor.     The  advowson  was  part  of  the 
manorial  property  of  the  lord,  who  built  the  church  and  endowed  it  with 
the  glebe  and  most  part  of  the  tithes.     The  seignories  in  respect  of  which 
he  received  his  rents  were  another  part  of  his  manor,  and  the  remainder 
principally  consisted  of  the  demesne  and  waste  lands,  over  the  latter  of 
which  we  have  seen  that  his  tenants  enjoyed  rights  of  common  as  ap- 
pendant to  their  estates. (y)     The  incorporeal  part  of  the  property,  both 
of  the  lord  and  his  tenants,  was  thus  strictly  appendant  or  incident  to 
that  part  which  was  corporeal ;  and  any  conveyance  of  the  corporeal  part 
naturally  and  necessarily  carried  with  it  that  part  which  was  incorporeal, 
unless  it  were  expressly  excepted.     But  as  society  advanced,  this  sim- 
ple state  of  things  became  subject  to  many  innovations,  and  in  various 
cases  the  incorporeal  portions  of  property  became  severed  from  the  corpo- 
real parts,  to  which  they  had  previously  belonged.     Thus  we  have  seen(z) 
that  the  seignory  of  lands  was  occasionally  severed  from  the  corporeal 
part  of  the  manor,  becoming  a  seignory  in  gross.     So  rent  was  sometimes 
granted  independently  of  the  lordship  or  reversion  to  which  it  had  been 
incident,  by  which  means  it  at  once  became  an  independent  incorporeal 
hereditament,  under  the  name  of  a  rent  seek.     Or  a  rent  might  have  been 
granted  to  some  other  person  than  the  lord,  under  the  name  of  a  rent 
charge.     In  the  same  way  a  "right  of  common  might  have  been    pg^n 
granted  to  some  other  person  than  a  tenant  of  the  manor,  by 
means  of  which  grant  a  separate  incorporeal  hereditament  would  have 
arisen,  as  a  common  in  gross,  belonging  to  the  grantee.     In  like  manner 
there  exist  at  the  present  day  two  kinds  of  advowsons  of  rectories ;  an 
advowson  appendant  to  a  manor,  and  an  advowson  in  gross,(a)  which  is 
a  distinct  subject  of  property,  unconnected  with  any  thing  corporeal. 
Advowsons  in  gross  appear  to  have  chiefly  had  their  origin  from  the 
severance  of  advowsons  appendant  from  the  manors  to  which  they  had 
belonged ;  and  any  advowson  now  appendant  to  a  manor  may  at  any 
time  be  severed  from  it,  either  by  a  conveyance  of  the  manor,  with  an 
express  exception  of  the  advowson,  or  by  a  grant  of  the  advowson  alone 
independently  of  the  manor.     And  when  once  severed  from  its  manor, 
and  made  an  independent  incorporeal  hereditament,  an  advowson  can 

(y)  Ante,  pp.  119,  322.  (z)  Ante,  p.  329. 

(a)  2  Black.  Com.  22  ;  Litt.  s.  617. 


343  OF   INCORPOREAL    HEREDITAMENTS. 

never  become  appendant  again.  So  long  as  an  advowson  is  appendant 
to  a  manor,  a  conveyance  of  the  manor,  even  by  feoffment,  and  without 
mentioning  the  appurtenances  belonging  to  the  manor,  will  be  sufficient 
to  comprise  the  advowson. (b)  But,  when  severed,  it  must  be  conveyed, 
like  any  other  separate  incorporeal  hereditament,  by  a  deed  of  grant. (c) 

The  advowsons  of  rectories  were  not  unfrequently  granted  by  the  lords 
of  manors  in  ancient  times  to  monastic  houses,  bishoprics,  and  other 
spiritual  corporations. (d)  When  this  was  the  case  the  spiritual  patrons 
thus  constituted  considered  themselves  to  be  the  most  fit  persons  to  be 
rectors  of  the  parish,  so  far  as  the  receipt  of  the  tithes  and  other  profits 
r*344l  °f  tne  rectory  was  *concerned ;  and  they  left  the  duties  of  the 
cure  to  be  performed  by  some  poor  priest  as  their  vicar  or  deputy. 
In  order  to  remedy  the  abuses  thus  occasioned,  it  was  provided  by  stat- 
utes of  Richard  II.(e)  and  Henry  IY.(f)  that  the  vicar  should  be  suffi- 
ciently endowed  wherever  any  rectory  was  thus  appropriated.  This  was 
the  origin  of  vicarages,  the  advowsons  of  which  belonged  in  the  first 
instance  to  the  spiritual  owners  of  the  appropriate  rectories  as  append- 
ant to  such  rectories  ;(g)  but  many  of  these  advowsons  have  since,  by 
severance  from  the  rectories,  been  turned  into  advowsons  in  gross.  And 
such  advowsons  of  vicarages  can  only  be  conveyed  by  deed,  like  advow- 
sons of  rectories  under  similar  circumstances. 

The  sale  of  an  advowson  will  not  include  the  right  to  the  next  presen- 
tation, unless  made  when  the  church  is  full ;  that  is,  before  the  right  to 
present  has  actually  arisen  by  the  death,  resignation,  or  deprivation  of 
the  former  incumbent. (//)  For  the  present  right  to  present  is  regarded 
as  a  personal  duty  of  too  sacred  a  character  to  be  bought  and  sold  ;  and 
the  sale  of  such  a  right  would  fall  within  the  offence  of  simony, — so  called 
from  Simon  Magus, — an  offence  which  consists  in  the  buying  or  selling 
of  holy  orders,  or  of  an  ecclesiastical  benefice. (i)  But  before  the  vacancy 
has  actually  occurred,  the  next  presentation,  or  right  of  presenting  at  the 
next  vacancy,  may  be  sold,  either  together  with,  or  independently  of,  the 
future  presentations  of  which  the  advowson  is  composed,(&)  and  this  is 

(b)  Perk.  s.  116  ;  Co.  Litt.  190  b,  307  a.     See  Attorney  Geueral  v.  Sitwell,  1  You.  & 
Coll.  559  ;  Rooper  v.  Harrison,  2  Kay  &  John.  86. 

(c)  Co.  Litt.  332  a,  335  b.  (d)  1  Black.  Com.  384. 

(e)  Stat.  15  Rich.  II.  c.  6.  (/)  Stat.  4  Hen.  IV.  c.  12. 

(</)  Dyer,  351  a. 

(h)  Alston  v.  Atlay,  7  Adol.  &  Ellis  289  (E.  C.  L.  R.  vol.  34). 

(t)  Bac.  Abr.  tit.  Simony;  stats.  31  Eliz.  c.  6 ;  28  &  29  Vict.  c.  122,  ss.  2,  5,  9. 

(k)  Fox  v.  Bishop  of  Chester,  6  Bing.  1  (E.  C.  L.  R.  vol.  19). 


OF    HEREDITAMENTS    PURELY    INCORPOREAL.  344 

frequently  done.  No  spiritual  person,  however,  may  sell  or  assign  any 
patronage  or  presentation  belonging  to  him  by  virtue  of  any  dignity 
*or  spiritual  office  held  by  him,  any  such  sale  and  assignment  r*q,ir-| 
being  void.(Z)  And  a  clergyman  is  prohibited  by  a  statute  of 
Anne(w)  from  procuring  preferment  for  himself  by  the  purchase  of  a 
next  presentation  ;  but  this  statute  does  not  prevent  the  purchase  by  a 
clergyman  of  an  estate  in  fee  or  even  for  life  in  an  advowson  with  a  view 
of  presenting  himself  to  the  living. (n)  When  the  next  presentation  is 
sold,  independently  of  the  rest  of  the  advowson,  it  is  considered  as  mere 
personal  property,  and  will  devolve,  in  case  of  the  decease  of  the  pur- 
chaser before  he  has  exercised  his  right,  on  his  executors,  and  cannot 
descend  to  his  heir  at  law.(o)  The  advowson  itself,  it  need  scarcely  be 
remarked,  will  descend,  on  the  decease  of  its  owner  intestate,  to  his  heir. 
The  law  attributes  to  it,  in  common  with  other  separate  incorporeal 
hereditaments,  as  nearly  as  possible  the  same  incidents  as  appertain  to 
the  corporeal  property  to  which  it  once  belonged. 

Tithes  are  another  species  of  separate  incorporeal  hereditaments,  also 
of  an  ecclesiastical  or  spiritual  kind.  In  the  early  ages  of  our  history, 
and  indeed  down  to  the  time  of  Henry  VIII.,  tithes  were  exclusively  the 
property  of  the  church,  belonging  to  the  incumbent  of  the  parish,  unless 
they  had  got  into  the  hands  of  some  monastery,  or  community  of  spiritual 
persons.  They  never  belonged  to  any  layman  until  the  time  of  the 
dissolution  of  monasteries  by  King  Henry  VIII.  But  this  monarch, 
having  procured  acts  of  parliament  for  the  dissolution  of  the  monasteries 
and  the  confiscation  of  their  property, (p)  also  obtained  by  the  same 
*acts(</)  a  confirmation  of  all  grants  made  or  to  be  made  by  his  r^qjp-i 
letters-patent  of  any  of  the  property  of  the  monasteries.  These 
grants  were  many  of  them  made  to  laymen,  and  comprised  the  tithes 
which  the  monasteries  had  possessed,  as  well  as  their  landed  estates. 
Tithes  thus  came  for  the  first  time  into  lay  hands  as  a  new  species  of 
property.     As  the  grants  had  been  made  to  the  grantees  and  their  heirs, 

(I)  Stat.  3  &  4  Vict.  c.  113,  s.  42. 

(m)  Stat.  12  Anne,  stat.  2,  c.  12,  s.  2. 

(re)  Walsh  v.  Bishop  of  Lincoln,  L.  R.  10  C.  P.  518. 

(o)  See  Bennett  v.  Bishop  of  Lincoln,  7  Barn.  &  Cress.  113  (E.  C.  L.  R.  vol.  14)  ;  8 
Bing.  490  (E.  U.  L.  R.  vol.  21). 

(p)  Stat.  27  Hen.  VIII.  c.  28,  intituled  "An  Act  that  all  Religious  Houses  under  the 
yearly  Revenue  of  Two  Hundred  Pounds  shall  be  dissolved,  and  given  to  the  king  and 
his  heirs  ;"  stat.  31  Hen.  VIII.  c.  13,  intituled,  "  An  Act  for  the, dissolution  of  all  .Mon- 
asteries and  Abbeys ;"  and  stat.  32  Hen.  VIII.  c.  24. 

(q)  27  Hen.  VI11.  c.  28,  s.  2  ;  31  Hen.  VIII.  c.  13,  ss.  18,  19. 


346  OF   INCORPOREAL    HEREDITAMENTS. 

or  to  them  and  the  heirs  of  their  bodies,  or  for  a  term  of  life  or  years,(r) 
the  tithes  so  granted  evidently  became  hereditaments  in  which  estates 
might  be  holden,  similar  to  those  already  known  to  be  held  in  other 
hereditaments  of  a  separate  incorporeal  nature ;  and  a  necessity  at  once 
arose  of  a  law  to  determine  the  nature  and  attributes  of  these  estates. 
How  such  estates  might  be  conveyed,  and  how  they  should  descend,  were 
questions  of  great  importance.  The  former  question  was  soon  settled 
by  an  act  of  parliament,^)  which  directed  recoveries,  fines,  and  convey- 
ances to  be  made  of  tithes  in  lay  hands,  according  as  has  been  used  for 
assurances  of  lands,  tenements,  and  other  hereditaments.  And  the 
analogy  of  the  descent  of  estates  in  other  hereditaments  was  followed 
in  tracing  the  descent  of  estates  of  inheritance  in  tithes.  But  as  tithes, 
being  of  a  spiritual  origin,  are  a  distinct  inheritance  from  the  lands  out 
of  which  they  issue,  they  have  not  been  considered  as  affected  by  any 
particular  custom  of  descent,  such  as  that  of  gavelkind  or  borough- 
English,  to  which  the  lands  may  be  subject;  but  in  all  cases  they 
r  A7i  *descend  according  to  the  course  of  the  common  law.(£)  From 
L  -I  this  separate  nature  of  the  land  and  tithe,  it  also  follows  that 
the  ownership  of  both  by  the  same  person  will  not  have  the  effect  of 
merging  the  one  in  the  other.  They  exist  as  distinct  subjects  of  property ; 
and  a  conveyance  of  the  land  with  its  appurtenances,  without  mention- 
ing the  tithes,  will  leave  the  tithes  in  the  hands  of  the  conveying  party,  (u) 
The  acts  which  have  been  passed  for  the  commutation  of  tithes(a;)  affect 
tithes  in  the  hands  of  laymen,  as  well  as  those  possessed  by  the  clergy. 
Under  these  acts  a  rent  charge,  varying  with  the  price  of  corn,  has  been 
substituted  all  over  the  kingdom  for  the  inconvenient  system  of  taking 
tithes  in  kind ;  and  in  these  acts  provision  has  been  properly  made  for 
the  merger  of  the  tithes  or  rent  charge  in  the  land,  by  which  the  tithes 
or  rent  charge  may  at  once  be  made  to  cease,  whenever  both  land  and 
tithes  or  rent  charge  belong  to  the  same  person. (y) 

There  are  other  species  of  incorporeal  hereditaments  which  are  scarcely 

(r)  Stat.  31  Hen.  VIII.  c.  13,  s.  18  ;  32  Hen.  VIII.  c.  7,  s.  1. 

(*)  Stat.  32  Hen.  VIII.  c.  7,  s.  7. 

(t)  Doe  d.  Lushingtou  v.  Bishop  of  Llandaff,  2  New  Rep.  491 ;  1  Eagle  on  Tithes  16. 

(w)  Chapman  v.  Gatcombe,  2  New  Cases  516  (E.  C.  L.  R.  vol.  29). 

(x)  Stats.  6  &  7  Will.  IV.  c.  71 ;  7  Will.  IV.  &  1  Vict.  c.  69 ;  1  &  2  Vict.  c.  64 ;  2  &  3 
Vict.  c.  62  ;  3  &  4  Vict.  c.  15 ;  5  Vict.  c.  7 ;  5  &  6  Vict.  c.  54 ;  9  &  10  Vict.  c.  73 ;  10  & 
11  Vict.  c.  104  ;  14  &  15  Vict.  c.  53 ;  16  &  17  Vict.  c.  124 ;  21  &  22  Vict.  c.  53 ;  23  &  24 
Vict.  c.  93 ;  and  36  &  37  Vict.  c.  42. 

(y)  Stat.  6  &  7  Will.  IV.  c.  71,  s.  71 ;  1  &  2  Vict.  c.  64 ;  2  &  3  Vict.  c.  62,  s.  1  ;  9  & 
10  Vict.  c.  73,  s.  19. 


OF   HEREDITAMENTS    PURELY   INCORPOREAL.  347 

worth  particular  notice  in  a  work  so  elementary  as  the  present,  especially 
considering  the  short  notice  that  has  necessarily  here  been  taken  of  the 
more  important  kinds  of  such  property.  Thus,  titles  of  honor,  in  them- 
selves an  important  kind  of  incorporeal  hereditament,  are  yet,  on  account 
of  their  inalienable  nature,  of  but  little  interest  to  the  conveyancer.  The 
same  remark  also  applies  to  offices  or  places  of  business  *and  r^g^g-i 
profit.  No  outline  can  embrace  every  feature.  Many  subjects, 
which  here  have  occupied  but  a  single  paragraph,  are  of  themselves  suffi- 
cient to  fill  a  volume.  Reference  to  the  diiferent  works  on  the  separate 
subjects  here  treated  of  must  necessarily  be  made  by  those  who  are  desi- 
rous of  full  and  particular  information. 


[*349]  *PART   III. 

OF   COPYHOLDS.1 

Our  present  subject  is  one  peculiarly  connected  with  those  olden  times 
of  English  History  to  which  we  have  had  occasion  to  make  so  frequent 
reference.  Everything  relating  to  copyholds  reminds  us  of  the  baron  of 
old,  with  his  little  territory,  in  which  he  was  king.  Estates  in  copyhold 
are,  however,  essentially  distinct,  both  in  their  origin  and  in  their  nature, 
from  those  freehold  estates  which  have  hitherto  occupied  our  attention. 
Copyhold  lands  are  lands  holden  by  copy  of  court  roll ;  that  is,  the 
muniments  of  the  title  to  such  lands  are  copies  of  the  roll  or  book  in 
which  an  account  is  kept  of  the  proceedings  in  the  court  of  the  manor  to 
which  the  lands  belong.  For  all  copyhold  lands  belong  to,  and  are 
parcel  of,  some  manor.  An  estate  in  copyhold  is  not  a  freehold;  but,  in 
construction  of  law,  merely  an  estate  at  the  will  of  the  lord  of  the  manor 
at  whose  will  copyhold  estates  are  expressed  to  be  holden.  Copyholds 
are  also  said  to  be  holden  according  to  the  custom  of  the  manor  to  which 
they  belong,  for  custom  is  the  life  of  copyholds. (a) 

In  former  days  a  baron  or  great  lord,  becoming  possessed  of  a  tract  of 
land,  granted  part  of  it  to  freemen  for  estates  in  fee  simple,  giving  rise 
to  the  tenure  of  such  estates  as  we  have  seen  in  the  chapter  of  Tenure. (b) 
r:).orA-|  Part  °f  tne  land  he  reserved  to  himself,  *forming  the  demesnes  of 
L  v  '  -I  the  manor,  properly  so  called  :{c)  other  parts  of  the  land  he  granted 
out  to  his  villeins  or  slaves,  permitting  them,  as  an  act  of  pure  grace  and 
favor,  to  enjoy  such  lands  at  his  pleasure ;  but  sometimes  enjoining,  in  return 
for  such  favor,  the  performance  of  certain  agricultural  services,  such  as 
ploughing  the  demesne,  carting  the  manure,  and  other  servile  works.  Such 
lands  as  remained,  generally  the  poorest,  were  the  waste  lands  of  the  manor, 

(a)  Co.  Cop.  s.  32,  Tr.  p.  58.  (b)  Ante,  p.  119. 

(c)  Co.  Cop.  s.  14,  Tr.  11  ;   Attorney-General  v.  Parsons,  2  Cro.  &  Jerv.  279,  308. 


1  The  law  of  copyholds  has  no  applica-  to  present  the  present  work  to  the  Ameri- 

tion  on  this  side  of  the  Atlantic,  and  has,  can  student  in  its  original  form,  especially 

indeed,  been  altogether  omitted  by  Profes-  as  the  curious  law  which  is  the  subject  of 

sor  Greenleaf  in   his  edition  ot  Cruise  on  this  chapter  is  treated  by  the  author  with 

Real  Property.    I  have,  however,  preferred  such  clearness.  R. 


OF    COPYHOLDS.  350 

over  which  rights  of  common  were  enjoyed  by  the  tenants. (d)  Thus  arose 
a  manor,  of  which  the  tenants  formed  two  classes,  the  freeholders  and  the 
villeins.  For  each  of  these  classes  a  separate  court  was  held  :  for  the  free- 
holders, a  Court  Baron  ;(e)  for  the  villeins  another,  since  called  a  Custom- 
ary Court.(/)  In  the  former  court  the  suitors  were  the  judges;  in  the 
latter  the  lord  only,  or  his  steward. (g)  In  some  manors  the  villeins  were 
allowed  life  interests ;  but  the  grants  were  not  extended  so  as  to  admit 
any  of  their  issue  in  a  mode  similar  to  that  in  which  the  heirs  of  freemen 
became  entitled  on  their  ancestors'  decease.  Hence  arose  copyholds  for 
lives.  In  other  manors  a  greater  degree  of  liberality  was  shown  by  the 
lords ;  and,  on  the  decease  of  a  tenant,  the  lord  permitted  his  eldest  son, 
or  sometimes  all  the  sons,  or  sometimes  the  youngest,  and  afterwards 
other  relations,  to  succeed  him  by  way  of  heirship ;  for  which  privilege, 
however,  the  payment  of  a  fine  was  usually  required  on  the  admittance 
of  the  heir  to  the  tenancy.  Frequently  the  course  of  descent  of  estates 
of  freehold  was  chosen  as  the  model  for  such  inheritances ;  but,  in  many 
cases,  dispositions  the  most  capricious  were  adopted  by  the  *lord,  r*oci-i 
and  in  time,  became  the  custom  of  the  manor.  Thus  arose  copy- 
holds of  inheritance.  Again,  if  a  villein  wished  to  part  with  his  own 
parcel  of  land  to  some  other  of  his  fellows,  the  lord  would  allow  him  to 
surrender  or  yield  up  again  the  land,  and  then,  on  payment  of  a  fine, 
would  indulgently  admit  as  his  tenant  on  the  same  terms  the  other,  to 
whose  use  the  surrender  had  been  made.  Thus  arose  the  method,  now 
prevalent,  of  conveying  copyholds  by  surrender  into  the  hands  of  the 
lord  to  the  use  of  the  alienee,  and  the  subsequent  admittance  of  the 
latter.  But  by  long  custom  and  continued  indulgence,  that  which  at 
first  was  a  pure  favor  gradually  grew  up  into  a  right.  The  will  of  the 
lord,  which  had  originated  the  custom,  came  at  last  to  be  controlled  by 
it.(h) 

The  rise  of  the  copyholder  from  a  state  of  uncertainty  to  certainty  of 
tenure  appears  to  have  been  very  gradual.  Britton,  who  wrote  in  the 
reign  of  Edward  I.,(i)  thus  describes  this  tenure  under  the  name  of  villein- 
age :  "  Villeinage  is  to  hold  part  of  the  demesnes  of  any  lord  entrusted 
to  hold  at  his  will  by  villein  services  to  improve  for  the  advantage  of  the 

(d)  2  Black.  Com.  90.  (e)  Ante,  p.  121. 

(/)  2  Watkins  on  Copyholds  4,  5  ;   1  Scriven  on  Copyholds  5,  6. 
[g)  Co.  Litt.  58  a. 

(h)  2  Black.  Com.  93  et  seq.,   147  ;  Wright's  Tenures  215  et  seq.  ;   1  Scriv.  Cop.  46  ; 
Garland  v.  Jekyll,  2  Bing.  292  (E.  C.  L.  R.  vol.  9). 
(i)  2  Reeves's  History  of  Eng.  Law  280. 
21 


851  ■  OF    COPYHOLDS. 

lord."  And  he  adds  that,  "In  manors  of  ancient  demesne  there  were 
pure  villeins  of  blood  and  of  tenure,  who  might  be  ousted  of  their  tene- 
ments at  the  will  of  their  lord."(&)  In  the  reign  of  Edward  III.,  how- 
ever, a  case  occurred  in  which  the  entry  of  a  lord  on  his  copyholder  was 
adjudged  lawful,  because  he  did  not  do  his  services,  by  which  he  broke 
the  custom  of  the  manor,(?)  which  seems  to  show  that  the  lord  could  not, 
at  the  time,  have  ejected  his  tenant  without  cause.(w)  And  in 
L  '  -J  *the  reign  of  Edward  IV.  the  judges  gave  to  copyholders  a  cer- 
tainty of  tenure,  by  allowing  to  them  an  action  of  trespass  on  ejection 
by  their  lords  without  just  cause. (n)  "  Now,"  says  Sir  Edward  Coke,(o) 
"  copyholders  stand  upon  a  sure  ground  ;  now  they  weigh  not  their  lord's 
displeasure ;  they  shake  not  at  every  sudden  blast  of  wind ;  they  eat, 
drink,  and  sleep  securely  ;  only  having  a  special  care  of  the  main  chance, 
namely,  to  perform  carefully  what  duties  and  services  soever  their  ten- 
ure doth  exact  and  custom  doth  require ;  then  let  lord  frown,  the  copy- 
holder cares  not,  knowing  himself  safe."  A  copyholder  has,  accordingly, 
now  as  good  a  title  as  a  freeholder;  in  some  respects  a  better;  for  all  the 
transactions  relating  to  the  conveyance  of  copyholds  are  entered  in  the 
court  rolls  of  the  manor,  and  thus  a  record  is  preserved  of  the  title  of  all 
the  tenants. 

In  pursuing  our  subject,  let  us  now  follow  the  same  course  as  we  have 
adopted  with  regard  to  freeholds,  and  consider,  first,  the  estates  which 
may  be  holden  in  copyhold  lands ;  and,  secondly,  the  modes  of  their 
alienation. 

(*)  Britton  165.  (I)  Year  Book,  43  Edw.  III.  25  a. 

(m)  4  Rep.  21  b.  Mr.  Hallam  states  that  a  passage  in  Britton,  which  had  escaped 
his  search,  is  said  to  confirm  the  doctrine  that,  so  long  as  the  copyholder  did  continue 
to  perform  the  regular  stipulations  of  his  tenure,  the  lord  was  not  at  liberty  to  divest 
him  of  his  estate.  3  Hallam's  Middle  Ages  261.  Mr.  Hallam  was,  perhaps,  misled  in 
his  supposition  by  a  quotation  from  Britton  made  by  Lord  Coke  (Co.  Litt.  61  a),  in 
which  the  doctrine  laid  down  by  Britton  as  to  socmen  is  erroneously  applied  to  copy- 
holders. The  passage  from  Britton,  cited  above,  is  also  subsequently  cited  by  Lord 
Coke,  but  with  a  pointing  which  spoils  the  sense. 

(h)  Co.  Litt.  61  a.  Equity  had  also  a  concurrent  jurisdiction.  Andrews  v.  Hulse,  4 
Kay  &  J.  392. 

(o)  Co.  Cop.  s.  9,  Tr.  p.  6. 


*CHAPTER    I.  [*353] 

OF    ESTATES    IN    COPYHOLDS. 

With  regard  to  the  estates  which  may  be  holden  in  copyholds,  in 
strict  legal  intendment  a  copyholder  can  have  but  one  estate;  and  that 
is  an  estate  at  will,  the  smallest  estate  known  to  the  law,  being  deter- 
minable at  the  will  of  either  party.     For  though  custom  has  now  ren- 
dered copyholders  independent  of  the  will  of  their  lords,  yet  all  copyholds, 
properly  so  called,  are  still  expressly  stated,  in  the  court  rolls  of  manors, 
to  be  holden  at  the  will  of  the  lord  ;(a)  and,  more  than  this,  estates  in 
copyholds  are  still  liable  to  some  of  the  incidents  of  a  mere  estate  at 
will      We  have  seen  that,  in  ancient  times,  the  law  laid  great  stress  on 
the  feudal  possession,  or  seisin,  of  lands,  and  that  this  possession  could 
only  be  had  by  the  holder  of  an  estate  of  freehold,  that  is,  an  estate 
sufficiently  important  to  belong  to  a  free  man.(6)     Now  copyholders  in 
ancient  times  belonged  to  the  class  of  villeins  or  bondsmen,  and  held  at 
the  will  of  the  lord  lands  of  which  the  lord  himself  was  alone  feudally 
possessed.     In  other  words,   the  lands  held  by  the  copyholders  still 
remained  part  and  parcel  of  the  lord's  manor ;  and  the  freehold  of  these 
lands  still  continued  vested  in  the  lord ;  and  this  is  the  case  at  the  pres- 
ent day  with  regard  to  all  copyholds.     The  lord  of  the  manor  is  actually 
seised  of  all  the  lands  in  the  possession  of  his  copyhold  tenants.(c)     He 
has  not  a  mere  incorporeal  seignory  over  these  as  he  has  over  his  free- 
hold tenants,  or  those  who  hold  of  *him  lands,  once  part  of  the    ^g^ 
manor,  but  which  were  anciently  granted  to  freemen  and  their 
heirs.(d)     Of  all  the  copyholds  he  is  the  feudal  possessor ;  and  the  seisin 
he  thus  has  is  not  without  its  substantial  advantages.     The  lord  having 
a  legal  estate  in  fee  simple  in  the  copyhold  lands,  possesses  all  the  rights 
incident  to  such  an  estate,(e)  controlled  only  by  the  custom  of  the  manor, 
which  is  now  the  tenant's  safeguard.     Thus  he  possesses  a  right  to  all 
mines  and  minerals  under  the  lands,(/)  and  also  to  all  timber  growing  on 
the  surface,  even  though  planted  by  the  tenant.^)     These  rights,  how- 

(a)  1  Watk.  Cop.  44,  45  :   1  Scriv.  Cop.  605. 

(6    Ante,  pp.  22,  141.  (0  Watk.  Desce,  tl  51  (59,  4th  ed.). 

(d)  Ante,  pp.  322,  323.  («)  Ante,  p.  79. 

(/)  1  Watk.  Cop.  333 ;  1  Scriv.  Cop.  25,  508.     See  Bowser  V.  Maclean,  2  De  G.,  i .  & 
J.  415 ;  Eardley  v.  Granville,  L.  R.  3  Ch.  Div.  826. 
(g)  1  Watk.  Cop.  332  ;   1  Scriv.  Cop.  499. 


354  OF    COPYHOLDS. 

ever,  are  somewhat  interfered  with  by  the  rights  which  custom  has  given 
to  the  copyhold  tenants  ;  for  the  lord  cannot  come  upon  the  lands  to  open 
his  mines,  or  to  cut  his  timber,  without  the  copyholder's  leave.  And 
hence  it  is  that  timber  is  so  seldom  to  be  seen  upon  lands  subject  to 
copyhold  tenure. (h)  Again,  if  a  copyholder  should  grant  a  lease  of  his 
copyhold  lands,  beyond  the  term  of  a  year,  without  his  lord's  consent, 
such  a  lease  would  be  a  cause  of  forfeiture  to  the  lord,  unless  it  were 
authorized  by  a  special  custom  of  the  manor. (?)  For  such  an  act  would 
be  imposing  on  the  lord  a  tenant  of  his  own  lands,  without  the  authority 
of  custom  ;  and  custom  alone  is  the  life  of  all  copyhold  assurances. (j)  So 
a  copyholder  cannot  *commit  any  waste,  either  voluntary  by 
L  ■*  opening  mines,  cutting  down  timber,  or  pulling  down  buildings, 
or  permissive,  by  neglecting  to  repair.  For  the  land,  with  all  that  is 
under  it  or  on  it,  belongs  to  the  lord  ;  the  tenant  has  nothing  but  a  cus- 
tomary right  to  enjoy  the  occupation  ;  and  if  he  should  in  any  way  ex- 
ceed this  right,  a  cause  of  forfeiture  to  his  lord  will  at  once  accrue. (k) 

A  peculiar  species  of  copyhold  tenure  prevails  in  the  north  of  Eng- 
land, and  is  to  be  found  also  in  other  parts  of  the  kingdom,  particularly 
within  manors  of  the  tenure  of  ancient  demesne ;(/)  namely,  a  tenure  by 
copy  of  court  roll,  but  not  expressed  to  be  at  the  will  of  the  lord.  The 
lands  held  by  this  tenure  are  denominated  customary  freeholds.  This 
tenure  has  been  the  subject  of  a  great  deal  of  learned  discussion  ;(w)  but 
the  courts  of  law  have  now  decided  that,  as  to  these  lands,  as  well  as 
to  pure  copyholds,  the  freehold  is  in  the  lord,  and  not  in  the  tenant.(w) 
If  a  conjecture  may  be  hazarded  on  so  doubtful  a  subject,  it  would  seem 
that  these  customary  freeholds  were  originally  held  at  the  will  of  the 
lords,  as  well   as   those   proper    copyholds   in  which   the   will  is   still 

(/*)  There  is  a  common  proverb,  "  The  oak  scorns  to  grow  except  on  free  land."  It 
is  certain  that  in  Sussex  and  in  other  parts  of  England  the  boundaries  of  copyholds 
may  be  traced  by  the  entire  absence  of  trees  on  one  side  of  a  line,  and  their  luxuriant 
growth  on  the  other.     3d  Rep.  of  Real  Property  Commissioners,  p.  15. 

(?)  1  Watk.  Cop.  327  ;  1  Scriv.  Cop.  544;  Doe  d.  Robinson  v.  Bousfield,  6  Q.  B.  492 
(E.  C.  L.  R.  vol.  51). 

(/)  By  stat.  40  &  41  Vict.  c.  18,  s.  9,  the  lords  of  settled  manors  may  be  empowered 
to  grant  licenses  to  their  copyhold  tenants  to  lease  their  lands  to  the  same  extent  and 
for  the  same  purposes  as  leases  may  be  authorized  of  freehold  land.     See  ante,  p.  26. 

(k)  1  Watk.  Cop.  331  ;  1  Scriv.  Cop.  526.  See  Doe  d.  Grubb  v.  Earl  of  Burlington, 
5  Barn.  &  Adol.  507  (E.  C.  L.  R.  vol.  27). 

(I)  Britt.  164  b,  165  a.     See  ante,  p.  130.  (m)  2  Scriv.  Cop.  665. 

(n)  Stephenson  v.  Hill,  3  Burr.  1278;  Doe  d.  Reay  v.  Huntington,  4  East  271  ;  Doe 
d.  Cook  v.  Danvers,  7  East  299  ;  Burrell  v.  Dodd,  3  Bos.  &  Pul.  378;  Thompson  v. 
Hardinge,  1  C.  B.  940  (E.  C.  L.  R.  vol.  50). 


OF    ESTATES    IN    COPYHOLDS.  355 

expressed  as  the  condition  of  tenure  ;(o)  but  that  these  tenants  early 
acquired  by  their  lord's  indulgence  a  right  to  hold  their  lands  on  per- 
formance  of  *certain   fixed  services  as  the  condition  of  their        9.(,-. 
tenure  ;  and  the  compliment  now  paid  to  the  lords  of  other  copy- 
holds, in  expressing  the  tenure  to  be  at  their  will,  was,  consequently,  in 
the  case  of  these  customary  freeholds,  long  since  dropped.     That  the 
tenants  have  not  the  fee  simple  in  themselves  appears  evident  from  the 
fact  that  the  right  to  mines  and  timber,  on  the  lands  held  by  this  tenure, 
belongs  to  the  lord  in  the  same  manner  as  in  other  copyholds.(^)    Neither 
can  the  tenants  generally  grant  leases  without  the  lord's  consent.(j)    The 
lands  are,  moreover,  said  to  be  parcel  of  the  manors  of  which  they  are 
held,  denoting  that  in  law  they  belong,  like  other  copyholds,  to  the  lord 
of  the  manor,  and  are  not  merely  held  of  him,  like  the  estates  of  the 
freeholders.(r)     In  law,  therefore,  the  estates  of  these  tenants  cannot,  in 
respect  of  their  lords,  be  regarded  as   any  other  than   estates  at  will, 
though  this  is  not  now  actually  expressed.     If  there  should  be  any  cus- 
tomary freeholds  in  which  the  above  characteristics,  or  most  of  them,  do 
not  exist,  such  may  with  good  reason  be  regarded  as  the  actual  freehold 
estates  of  the  tenants.     The  tenants  would  then  possess  the  rights  of  other 
freeholders  in  fee  simple,  subject  only  to  a  customary  mode  of  alienation. 
That  such  a  state  of  things  may,  and  in  some  cases  does,  exist,  is  the 
opinion  of  some  very  eminent  lawyers. (s)     But  a  recurrence  to  first  prin- 
ciples seems  to  *show  that  the  question,  whether  the  freehold  is    pg^-i 
in  the  lord  or  in  the  tenant,  is  to  be  answered,  not  by  an  appeal 
to  learned  dicta  or  conflicting  decisions,  but  by  ascertaining  in  each  case 

(o)  See  Bract,  lib.  4,  fol.  208  b,  209  a;  Co.  Cop.  s.  32,  Tr.  p.  57.  In  Stephenson  v. 
Hill,  3  Burr.  1278,  Lord  Mansfield  says  that  copyholders  had  acquired  a  permanent 
estate  in  their  lands  before  these  .persons  had  done  so.  But  he  does  not  state  where 
he  obtained  his  information. 

{p)  Doe  d.  Reay  v.  Huntington,  4  East  271,  273  ;  Stephenson  v.  Hill,  3  Burr.  1277, 
arguendo  ;  Duke  of  Portland  v.  Hill,  V.  C.  W.,  Law  Rep.  2  Eq.  765. 

(q)  Doe  v.  Danvers,  7  East  299,  301,  314. 

(r)  Burrel  v.  Dodd,  3  Bos.  &  Pul.  378,  3*81  ;  Doe  v.  Danvers,  7  East  320,  321. 

(«)  Sir  Edward  Coke,  Co.  Litt.  59  b  ;  Co.  Cop.  Sec.  32  Tracts,  p.  58  ;  Sir  Matthew 
Hale,  Co.  Litt.  59  b,  n.  (1)  ;  Sir  W.  Blackstone,  Considerations  on  the  Question,  &c. ; 
Sir  John  Leach,  Bingham  v.  Woodgate,  1  Russ.  &  Mylne  32,  1  Tamlyn  138.  Tene- 
ments within  the  limits  of  the  ancient  borough  of  Kirby-in-Kendal,  in  Westmoreland, 
appear  to  be  an  instance;  Busher,  app.,  Thompson,  resp.,  4  C.  B.  48  (E.  C.  L.  R.  vol. 
56).  The  freehold  is  in  the  tenants,  and  the  customary  mode  of  conveyance  has 
always  been  by  deed  of  grant,  or  bargain  and  sale,  without  livery  of  seisin,  lease  for  a 
year,  or  enrolment.  Some  of  the  judges,  however,  seem  to  doubt  the  validity  of  such 
a  custom.  See  also  Perryman's  Case,  5  Rep.  84;  Passingham,  app.  Pitty,  resp.,  17 
C.  B.  299  (E.  C.  L.  R.  vol.  84). 


357  OF   COPYHOLDS. 

whether  the  well-known  rights  of  freeholders,  such  as  to  cut  timber  and 
di^  mines,  are  vested  in  the  lord  or  in  the  tenant. 

It  appears  then  that,  with  regard  to  the  lord,  a  copyholder  is  only  a 
tenant  at  will.  But  a  copyholder,  who  has  been  admitted  tenant  on  the 
court  rolls  of  a  manor,  stands,  with  respect  to  other  copyholders,  in  a 
similar  position  to  a  freeholder  who  has  the  seisin.  The  legal  estate  in 
the  copyholds  is  said  to  be  in  such  a  person  in  the  same  manner  as  the 
legal  estate  of  freeholds  belongs  to  the  person  who  is  seised.  The 
necessary  changes  which  are  constantly  occurring  of  the  persons  who 
from  time  to  time  are  tenants  on  the  rolls  form  occasionally  a  source  of 
considerable  profit  to  the  lords.  For  by  the  customs  of  manors,  on  every 
change  of  tenancy,  whether  by  death  or  alienation,  fines  of  more  or  less 
amount  become  payable  to  the  lord.  By  the  custom  of  some  manors 
the  fine  payable  was  anciently  arbitrary  ;  but  in  modern  times,  fines, 
even  when  arbitrary  by  custom,  are  restrained  to  two  years'  improved 
value  of  the  land  after  deducting  quit  rents.(^)  Occasionally  a  fine  is 
due  on  the  change  of  the  lord ;  but,  in  this  case,  the  change  must  be  by 
the  act  of  God  and  not  by  any  act  of  the  party.(tt)  The  tenants  on  the 
rolls,  when  once  admitted,  hold  customary  estates  analogous  to  the  estates 
r^.n-,  which  may  be  holden  in  freeholds.  These  estates  of  copyholders 
are  *only  quasi  freeholds  ;  but  as  nearly  as  the  rights  of  the  lord 
and  the  custom  of  each  manor  will  allow,  such  estates  possess  the  same 
incidents  as  the  freehold  estates  of  which  we  have  already  spoken.  Thus 
there  may  be  a  copyhold  estate  for  life ;  and  some  manors  admit  of  no 
other  estates,  the  lives  being  continually  renewed  as  they  drop.  And  in 
those  manors  in  which  estates  of  inheritance,  as  in  fee  simple  and  fee 
tail,  are  allowed,  a  grant  to  a  man  simply,  without  mentioning  his  heirs, 
will  confer  only  a  customary  estate  for  his  life.(v)  But  as  the  customs 
of  manors,  having  frequently  originated  in  mere  caprice,  are  very 
various,  in  some  manors  the  words  "to  him  and  his,"  or  "to  him  and 
his  assigns,"  or  "  to  him  and  his  sequels  in  right,"  will  create  a  customary 
estate  in  fee  simple,  although  the  word  heirs  may  not  be  used.(x) 

It  will  be  remembered  that  anciently,  if  a  grant  had  been  made  of 
freehold  lands  to  B.  simply,  without  mentioning  his  heirs,  during  the 
life  of  A.,  and  B.  had  died  first,  the  first  person  who  entered  after  the 
decease  of  B.  might  lawfully  hold  the  lands  during  the  residue  of  the  life 

(t)  1  Scriv.  Cop.  384.    '  (u)  1  Watk.  Cop.  285. 

(v)  Co.  Cop.  s.  49,  Tr.  p.  114.     See  ante,  pp.  19,  145.  (x)  1  Watk.  Cop.  109. 


OF    ESTATES   IN    COPVHOLDS.  358 

of  A.(?/)  And  this  general  occupancy  was  abolished  by  the  Statute  of 
Frauds.  But  copyhold  lands  were  never  subject  to  any  such  law. (3) 
For  the  seisin  or  feudal  possession  of  all  such  lands  belongs,  as  we  have 
seen, (a)  to  the  lord  of  the  manor,  subject  to  the  customary  rights  of 
occupation  belonging  to  his  tenants.  In  the  case  of  copyholds,  there- 
fore, the  lord  of  the  manor  after  the  decease  of  B.  would,  until  lately, 
have  been  entitled  to  hold  the  lands  during  the  residue  of  A.'s  life;  and 
the  Statute  *of  Frauds  had  no  application  to  such  a  case. (b) 
But  now,  by  the  act  for  the  amendment  of  the  laws  with  respect  ^  J 
to  wills, (<?)  the  testamentary  power  is  extended  to  copyhold  or  customary 
estates  pur  autre  vie  ;{d)  and  the  same  provision,  as  to  the  application  of 
the  estate  by  the  executors  or  administrators  of  the  grantee,  as  is  con- 
tained with  reference  to  freeholds, (e)  is  extended  also  to  customary  and 
copyhold  estates. (/)  The  grant  of  an  estate  pur  autre  vie,  in  copy- 
holds, may,  however,  be  extended,  by  express  words,  to  the  heirs  of  the 
grantee. (y)  And  in  this  event  the  heir  will,  in  case  of  intestacy,  be 
entitled  to  hold  during  the  residue  of  the  life  of  the  cestui  que  vie,  subject 
to  the  debts  of  his  ancestor  the  grantee. (A) 

An  estate  tail  in  copyholds  stands  upon  a  peculiar  footing,  and  has  a 
history  of  its  own,  which  we  shall  now  endeavor  to  give.(z)  This  estate, 
it  will  be  remembered,  is  an  estate  given  to  a  man  and  the  heirs  of  his 
body.  With  regard  to  freeholds,  we  have  seen(k)  that  an  estate  given  to 
a  man  and  the  heirs  of  his  body  was,  like  all  other  estates,  at  first 
inalienable;  so  that  no  act  which  the  tenant  could  do  could  bar  his 
issue,  or  expectant  heirs,  of  their  inheritance.  But,  in  an  early  period 
of  our  history,  a  right  of  alienation  appears  gradually  to  have  grown  up, 
empowering  every  *freeholder  to  whose  estate  there  was  an  ex- 
pectant heir  to  disinherit  such  heir,  by  gift  or  sale  of  the  lands.  ■-  -* 
A  man,  to  whom  lands  had  been  granted  to  hold  to  him  and  the  heirs 
of  his  body,  was  accordingly  enabled  to  alien  the  moment  a  child  or 

{y)  Ante,  p.  20. 

(z)  Doe  d.  Foster  v.  Scott,  4  Barn.  &  Cress.  706  (E.  C.  L.  R.  vol.  10)  ;  7  Dow.  & 
Ryl.  190. 

(a)  Ante,  p.  353.  (b)  1  Scriv.  Cop.  63,  108  ;  1  Watk.  Cop.  302. 

(c)  Stat.  7  Will.  IV.  &  1  Viet.  c.  26.  (d)  Sect.  3. 

(e)  Ante,  p.  21.  (/)  Sect.  6. 

(ff)  1  Scriv.  Cop.  64;  1  Watk.  Cop.  303.     (h)  Stat.  7  Will.  IV.  &  1  Vict.  c.  26,  s.  6. 

(i)  The  attempt  here  made  to  explain  this  subject  is  grounded  on  the  authorities 
and  reasoning  of  Mr.  Serjt.  Scriven.  (1  Scriv.  Cop.  67  el  seq.)  Mr.  Watkins  sets  out 
with  right  principles,  but  seems  strangely  to  stumble  on  the  wrong  conclusion.  (1 
Watk.  Cop.  chap.  4.) 

(k)  Ante,  p.  36  et  seq. 


:',()()  OF    COPYHOLDS. 

expeotant  heir  of  his  body  was  born  to  him;  and  this  right  of  alienation  at 
last  extended  to  the  possibility  of  reverter  belonging  to  the  lord,  as  well 
as  to  the  expectancy  of  the  heir  ;(l)  till  at  length  it  was  so  well  estab- 
lished as  to  require  an  act  of  parliament  for  its  abolition.  The  statute 
/>,  dont8(m)  accordingly  restrained  all  alienation  by  tenants  of  lands 
which  had  been  granted  to  themselves  and  the  heirs  of  their  bodies;  so 
thai  the  lands  might  not  fail  to  descend  to  their  issue  after  their  death, 
or  to  revert  to  the  donors  or  their  heirs  if  issue  should  fail.  This  statute 
was  passed  avowedly  to  restrain  that  right  of  alienation,  of  the  prior 
existence  of  which  the  statute  itself  is  the  best  proof.  And  this  right, 
in  respect  of  fee  simple  estates,  was  soon  afterwards  acknowledged  and 
confirmed  by  the  statute  of  Quia  emptores.(n)  But  during  all  this 
period  copyholders  were  in  a  very  different  state  from  the  freemen,  who 
were  the  objects  o{'  the  above  statutes. (o)  Copyholders  were  most  of 
them  mere  slaves,  tilling  the  soil  of  their  lord's  demesne,  and  holding 
their  little  tenements  at  his  will.  The  right  of  an  ancestor  to  bind  his 
heir,(»)  with  which  right,  as  we  have  seen,^)  the  power  to  alienate  free- 
holds commenced,  never  belonged  to  a  copyholder.(r)  And,  until  the 
vear  L833,  copyhold  lands  in  fee  simple  descended  to  the  customary 
>n  heir,  quite  unaffected  by  *any  bond  debts  of  his  ancestor  by 
*■  which  the  heir  of  his  freehold  estates  might  have  been  bound. (s) 

It  would  be  absurd,  therefore,  to  suppose  that  the  right  of  alienation  of 
copyhold  estates  arose  in  connection  with  the  right  of  freeholders.  The 
two  classes  were  then  quite  distinct.  The  one  were  poor  and  neglected: 
the  other  powerful  and  consequently  protected.^)  The  one  held  their 
tenements  at  the  will  o(  their  lords  :  the  other  alienated  in  spite  of  them. 
The  one  were  subject  to  the  whims  and  caprices  of  their  individual 
masters;  the  other  were  governed  only  by  the  general  laws  and  customs 
<,A%  the  realm. 

13  Edw.  I.  c.  1;  ante.  p.  43. 
18  Edw.  I.  c.  1. 
.  the  preamble  of  the  statute  A  (fonts,  the  tenants  are  spoken         -  «,  and 

to  bar  their  donors,  showing  that  freeholders  only  were 
iutc-  -  •  freemen  are  expressly  mentioned. 

(q)  Ante,  pp.  38-4 
- 

—    V.llus  liber  homo  eapiatnr  Tel 
-   -  to  s  -isi  per  legale  jadi- 

N  -.Hi  veudemus.  nulli  negabimus.  an: 
sses  -      -   it  may  have  been  s: 

-      - 


OF    ESTATES   IN    COPYHOLDS. 

Now,  with  regard  to  an  estate  given  to  a  copyholder  and  the  heirs  of 
his  body,  the  lords  of  different  manors  appear  to  have  acted  differently, 
some  of  them  permitting  alienation  on  issue  being  horn,  and  others  for- 
bidding it  altogether.  And  from  this  difference  appears  to  have  arisen 
the  division  of  manors,  in  regard  to  estates  tail,  into  two  classes,  namely, 
those  in  which  there  is  no  custom  to  entail,  and  those  in  which  such  a 
custom  exists.  In  manors  in  which  there  is  no  custom  to  entail,  a  gift 
of  copyholds,  to  a  man  and  the  heirs  of  his  body,  will  give  him  an  estate 
analogous  to  the  fee  simple  conditional  which  a  freeholder  would  have 
acquired  under  such  a  gift  before  the  passing  of  the  statute  />< 
donis.(u)  Before  he  has  issue,  he  will  not  be  able  to  alien  ;  but  after 
issue  are  *born  to  him,  he  may  alienate  at  his  pleasure.)/')  In  ,.,.•.,, 
this  case  the  right  of  alienation  appears  to  be  of  a,  very  ancient 
origin,  having  arisen  from  the  liberality  of  the  lord  in  permitting  his 
tenants  to  stand  on  the  same  footing  in  this  respect  as  freeholders  then 
stood. 

But  as  to  those  manors  in  which  the  alienation  of  the  estate  in  ques 
tion  was  not  allowed,  the  history  appears  somewhat  different.  The  esl ate, 
being  inalienable,  descended,  of  course,  from  father  to  son,  according  to 
the  customary  line  of  descent.  A  perpetual  entail  was  thus  set,  up,  and 
a  custom  to  entail  established  in  the  manor.  But  in  process  of  time  the 
original  strictness  of  the  lord  defeated  his  own  end.  For  the  evils  of 
such  an  entail,  which  had  been  felt  as  to  freeholds,  after  the  passing  of 
the  statute  Be  donis,(z)  became  felt  also  as  to  copyholds.( y)  And,  as 
the  copyholder  advanced  in  importance,  different  devices  were  resorted 
to  for  the  purpose  of  effecting  a  bar  to  the  entail  ;  and,  in  different 
manors,  different  means  were  held  sufficient  for  this  purpose.  In  sonic, 
a  customary  recovery  was  suffered,  in  analogy  to  the  common  recovery, 
by  which  an  entail  of  freeholds  had  been  cut  off.(z)  In  others,  the  same 
effect  was  produced  by  a  preconcerted  forfeiture  of  the  lands  by  the 
tenant,  followed  by  a  re-grant  from  the  lord  of  an  estate;  in  fee  simple. 
And  in  others  a  conveyance  by  surrender,  the  ordinary  means,  became 
sufficient  for  the  purpose;  and  the  presumption  was  that  a  surrendei 
would  bar  the  estate  tail  until  a  contrary  custom  was  shown. (a)  Thu 
happened  that  in  all  manors  in  which  there  existed  a  custom  to  entail,  a 

(u)  Ante,  pp.  37,  43;  Doe  d.  Blesard  v.  Simpson,  4  I  (E.  C.  L    ' 

33)  ;   3  Man.  k  Gran.   929  (E.  0.  L.  B.  vol.  42). 

(v)  Doe  d.  Spencer  v.  Clark,  5  Barn.  &  Aid.  458  (E.  0.  L.  B.  vol.  1). 

(x)  Ante,  p.  43.  (y)  1  Scriv.  Cop.  70. 

(z)  Ante,  p.  46.  bite,  1  K.-.v 


363  OF    COPYHOLDS. 

right  grew  up,  empowering  the  tenant  in  tail  by  some  means 
L  <-  -I  or  *other  at  once  to  alienate  the  lands.  He  thus  ultimately 
became  placed  in  a  better  position  than  the  tenant  to  him  and  the  heirs 
of  his  body  in  a  manor  where  alienation  was  originally  permitted.  For, 
such  a  tenant  can  now  only  alienate  after  he  has  had  issue.  But  a  tenant 
in  tail,  where  the  custom  to  entail  exists,  need  not  wait  for  any  issue,  but 
may  at  once  destroy  the  fetters  by  which  his  estate  has  been  attempted 
to  be  bound. 

The  beneficial  enactment  before  referred  to,(5)  by  which  fines  and  com- 
mon recoveries  of  freeholds  were  abolished,  also  contains  provisions  ap- 
plicable to  entails  of  copyholds.  Instead  of  the  cumbrous  machinery  of 
a  customary  recovery  or  a  forfeiture  and  re-grant,  it  substitutes,  in  every 
case,  a  simple  conveyance  by  surrender,^)  the  ordinary  means  for  con- 
veying a  customary  estate  in  fee  simple.  When  the  estate  tail  is  in  re- 
mainder, the  necessary  consent  of  the  protectory)  may  be  given,  either 
by  deed,  to  be  entered  on  the  court  rolls  of  the  manor, (e)  or  by  the  con- 
currence of  the  protector  in  the  surrender,  in  which  case  the  memoran- 
dum or  entry  of  the  surrender  must  expressly  state  that  such  consent 
has  been  given.(/) 

The  same  free  and  ample  power  of  alienation,  which  belongs  to  an 
estate  in  fee  simple  in  freehold  lands,  appertains  also  to  the  like  estate  in 
copyholds.  The  liberty  of  alienation  inter  vivos  appears,  as  to  copyholds, 
to  have  had  little  if  any  precedence,  in  point  of  time,  over  the  liberty  of 
alienation  by  will.  Both  were,  no  doubt,  at  first  an  indulgence,  which 
r*3fiJ.1  subsequently  ripened  into  a  right.  And  these  rights  of  *  volun- 
tary alienation  long  outstripped  the  liability  to  involuntary 
alienation  for  the  payment  of  the  debts  of  the  tenants ;  for,  till  the  year 
1833,  copyhold  lands  of  deceased  debtors  were  under  no  liability  to  their 
creditors,  even  where  the  heirs  of  the  debtor  were  expressly  bound. (g) 
And  the  crown  had  no  further  privilege  than  any  other  creditor.  But 
now,  all  estates  in  fee  simple,  whether  freehold,  customary,  or  copyhold, 
are  rendered  liable  to  the  payment  of  all  the  just  debts  of  the  deceased 
tenant. (h)  Creditors  who  had  obtained  judgments  against  their  debtors 
were  also,  till  the  year  1838,  unable  to  take  any  part  of  the  copyhold 
lands  of  their  debtors  under  the  writ  of  elegit.{i)     But  the  act,  by  which 

(b)  Stat.  3  &  4  Will.  IV.  c.  74 ;  ante,  p.  48.  (c)  Sect.  50. 

(rf)  See  ante,  p.  52.  (e)  Sect.  51. 

(/)  Sect.  52.  (</)  4  Rep.  22  a ;  1  Watk.  Copyholds  140. 

(h)  Stat.  3  &  4  Will.  IV.  c.  104.  (i)  See  ante,  p.  84 ;  1  Scriv.  Copyholds  60. 


OF    ESTATES   IN   COPYHOLDS.  364 

the  remedies  of  judgment  creditors  were  extended,^')  enables  the  sheriff, 
under  the  writ  of  elegit,  to  deliver  execution  of  copyhold  or  customary, 
as  well  as  of  freehold  lands ;  and  purchasers  of  copyholds  thus  became 
bound  by  all  judgments  which  had  been  entered  up  against  their  ven- 
dors. But  if  any  purchaser  should  have  had  no  notice  of  any  judgment, 
it  would  seem  that  he  was  protected  by  the  clause  in  a  subsequent  act,(/c) 
which  provided  that  as  to  purchasers  without  notice,  no  judgment  should 
bind  any  lands,  otherwise  than  it  would  have  bound  such  purchasers 
under  the  old  law.  By  a  later  act,  even  if  the  purchaser  had  notice  of 
a  judgment,  he  was  not  bound  unless  a  writ  of  execution  on  the  judg- 
ment should  have  been  issued  and  registered  before  the  execution  of  his 
conveyance  and  the  payment  of  his  purchase-money ;  nor  even  then 
unless  the  execution  should  have  been  put  in  force  within  three  calendar 
months  from  the  time  when  it  *was  registered. (?)  And  now,  as 
we  have  seen,  the  lien  of  all  judgments  of  a  date  subsequent  to  ^  J 
the  29th  of  July,  1864,  has  been  abolished  altogether. (m) 

Copyholds  are  equally  liable,  with  freeholds,  to  involuntary  aliena- 
tion on  the  bankruptcy  of  the  tenant.  The  trustee  for  the  creditors  has 
now  power  to  deal  with  any  property  of  every  description  to  which  the 
bankrupt  is  beneficially  entitled  as  tenant  in  tail,  in  the  same  manner  as 
the  bankrupt  might  have  dealt  with  the  same.(w)  And  the  Bankruptcy 
Act,  1869,  provides  that  where  any  portion  of  the  bankrupt's  estate 
consists  of  copyhold  or  customary  property,  or  any  like  property  passing 
by  surrender  and  admittance  or  in  any  similar  manner,  the  trustee  shall 
not  be  compellable  to  be  admitted  to  such  property,  but  may  deal  with 
the  same  in  the  same  manner  as  if  such  property  had  been  capable  of 
being  and  had  been  duly  surrendered  or  otherwise  conveyed  to  such  uses 
as  the  trustee  may  appoint ;  and  any  appointee  of  the  trustee  shall  be 
admitted  or  otherwise  invested  with  the  property  accordingly. (o) 

The  descent  of  an  estate  in  fee  simple  in  copyholds  is  governed  by  the 
custom  of  descent  which  may  happen  to  prevail  in  the  manor ;  but, 
subject  to  any  such  custom,  the  provisions  contained  in  the  act  for  the 

(/)  Stat.  1  &  2  Vict.  c.  110,  s.  11. 

(k)  Stat.  2  &  3  Vict.  c.  11,  s.  5  ;  ante,  p.  87. 

(I)  Stat.  23  &  24  Vict.  c.  38,  s.  1  ;  ante,  p.  88. 

(m)  Stat.  27  &  28  Vict.  c.  112 ;  ante,  p.  88. 

(«)  Stat.  32  &  33  Vict.  c.  71,  s.  25,  par.  (4),  which  embodies  stat.  3  &  4  Will.  IV.  c. 
74,  ss.  56-73. 

(o)  Stat.  32  &  33  Vict.  c.  71,  s.  22.  The  former  statutes  relating  to  this  subject  were 
stats.  12  &  13  Vict.  c.  106,  s.  209,  and  24  &  25  Vict.  c.  134,  s.  114. 


365  OF   COPYHOLDS. 

amendment  of  the  law  of  inheritance^)  apply  to  copyhold  as  well  as 
freehold  hereditaments,  whatever  be  the  customary  course  of  their 
r*Wfi~\  ^escent*  As,  *n  tne  case  °f  freeholds,  *the  lands  of  a  person 
L  J  dying  intestate  descend  at  once  to  his  heir,(<?)  so  the  heir  of  a 
copyholder  becomes,  immediately  on  the  decease  of  his  ancestor,  tenant 
of  the  lands,  and  may  exercise  any  act  of  ownership  before  the  ceremony 
of  his  admittance  has  taken  place. (r)  But  as  between  himself  and  the 
lord,  he  is  not  completely  a  tenant  till  he  has  been  admitted. 

The  tenure  of  an  estate  in  fee  simple  in  copyholds  involves,  like  the 
tenure  of  freeholds,  an  oath  of  fealty  from  the  tenant,(s)  together  with 
suit  to  the  customary  court  of  the  manor.  Escheat  to  the  lord  on  failure 
of  heirs  is  also  an  incident  of  copyhold  tenure.  And  before  the  abolition 
of  forfeiture  for  treason  and  felony(£)  the  lord  of  a  copyholder  had  the 
advantage  over  the  lord  of  a  freeholder  in  this  respect,  that,  whilst  free- 
hold lands  in  fee  simple  were  forfeited  to  the  crown  by  the  treason  of  the 
tenant,  the  copyholds  of  a  traitor  escheated  to  the  lord  of  the  manor  of 
which  they  were  held.(?<)  Rents(r)  also  of  small  amount  are  not  unfre- 
quent  incidents  of  the  tenure  of  copyhold  estates.  And  reliefs(z)  may, 
by  special  custom,  be  payable  by  the  heir.(?/)  The  other  incidents  of 
copyhold  tenure  depend  on  the  arbitrary  customs, of  each  particular 
manor ;  for  this  tenure,  as  we  have  seen,(;z)  escaped  the  destruction  in 
which  the  tenures  of  all  freehold  lands  (except  free  and  common  socage, 
and  frankalmoign)  were  involved  by  the  act  of  12  Car.  II.  c.  24. 

A  curious  incident  to  be  met  with  in  the  tenure  of  some  copyhold 
r*SB7"l  estates  is  ^ie  right  of  the  lord,  on  the  *death  of  a  tenant,  to 
seize  the  tenant's  best  beast,  or  other  chattel,  under  the  name  of 
a  heriot.(a)  Heriots  appear  to  have  been  introduced  into  England  by 
the  Danes.  The  heriot  of  a  military  tenant  was  his  arms  and  habili- 
ments of  war,  which  belonged  to  the  lord,  for  the  purpose  of  equipping 
his  successor.  And,  in  analogy  to  this  feudal  custom,  the  lords  of  manors 
usually  expected  that  the  best  beast  or  other  chattel  of  each  tenant, 

Stat.  3  &  4  Will.  IV.  c.  106.  (q)  Ante,  97. 

(r)  1  Scriv.  Cop.  357  ;  Right  d.  Taylor  v.  Banks,  3  Bar.  &  Ad.  664  (E.  C.  L.  R.  vol. 
23);  King  v.  Turner,  1  My.  &  K.  456;  Doe  d.  Perry  v.  Wilson.  5  Ad.  &  Ell.  321  (E.  C. 
L.  R.  vol.  31). 

(*)  2  Scriv.  Cop.  732.  (()  See  ante,  pp.  57,  126  et  seq. 

(u)  Lord  Cornwallis's  Case,  2  Ventr.  38  ;   1  Watk.  Cop.  340  ;  1  Scriv.  Cop.  552. 

Inte,  p.  124.  (x)  Ante,  pp.  120,  122,  124. 

(y)  1  Scriv.  Cop.  436.  (z)  Ante,  p.  123. 

(a)  1  Scriv.  Cop.  437  et  seq. 


OF    ESTATES    IN    COPYHOLDS.  367 

whether  he  were  a  freeman  or  a  villein,  should  on  his  decease  be  left  to 
them. (b)  This  legacy  to  the  lord  was  usually  the  first  bequest  in  the 
tenant's  will  ;(c)  and,  when  the  tenant  died  intestate,  the  heriot  of  the 
lord  was  to  be  taken  in  the  first  place  out  of  his  effects,(d)  unless,  indeed, 
as  not  unfrequently  happened,  the  lord  seized  upon  the  whole  of  the 
goods.(e)  To  the  goods  of  the  villein  he  was  indeed  entitled,  the  villein 
himself  being  his  lord's  property.  And  from  the  difference  between  the 
two  classes  of  freemen  and  villein  has  perhaps  arisen  the  circumstance 
that,  whilst  heriots  from  freeholders  seldom  occur,(/)  heriots  from  copy- 
holders remain  to  this  day,  in  many  manors,  a  badge  of  the  ancient 
servility  of  the  tenure.  But  the  right  of  the  lord  is  now  confined  to 
such  a  chattel  as  the  custom  of  the  manor,  grown  into  a  law,  will  enable 
him  to  take. { g)  The  kind  of  chattel  which  may  be  taken  for  a  heriot 
varies  in  different  manors.  And  in  some  cases  the  heriot  consists  merely 
of  a  money-payment. 

*A11  kinds  of  estates  in  copyholds,  as  well  as  in  freeholds,  r+qfio-i 
may  be  held  in  joint  tenancy  or  in  common  ;  and  an  illustra-  *-  -■ 
tion  of  the  unity  of  a  joint  tenancy  occurs  in  the  fact  that  the  admis- 
sion, on  the  court  rolls  of  a  manor,  of  one  joint  tenant,  is  the  admission 
of  all  his  companions ;  and  on  the  decease  of  any  of  them  the  survivors 
or  survivor,  as  they  take  no  new  estate,  require  no  new  admittance. (A) 
The  jurisdiction  of  the  Court  of  Chancery  in  enforcing  partitions  be- 
tween joint  tenants  and  tenants  in  common  did  not  formerly  extend  to 
copyhold  lands. (i)  But  by  an  enactment  of  the  present  reign(/)  this 
jurisdiction  was  extended  to  the  partition  of  copyholds  as  well  as 
freeholds. 

The  rights  of  lords  of  manors  to  fines  and  heriots,  rents,  reliefs,  and 
customary  services,  together  with  the  lord's  interest  in  the  timber  grow- 
ing on  copyhold  lands,  have  been  found  productive  of  considerable  in- 
convenience to  copyhold  tenants,  without  any  sufficient  corresponding 

(b)  Bract.  86  a ;  2  Black.  Com.  423,  424.         (c)  Bract.  60  a;  Fleta,  lib.  2,  cap.  57. 

(d)  Bract.  60  b  ;  Fleta,  lib.  2,  cap.  57. 

(e)  See  articuli  observanda  per  provisioned  episcoporum  Angliaj,  s.  25  Matth.  Paris 
951 ;  Additamenta,  p.  201  (Watt's  ed.  Lon.  1640). 

(/)  By  the  custom  of  the  manor  of  South  Tawton,  otherwise  Itton,  in  the  county  of 
Devon,  heriots  are  still  due  from  the  freeholders  of  the  manor:  Damerell  v.  Protheroe, 
10  Q.  B.  20  (E.  C.  L.  R.  vol.  59);  and  in  Sussex  and  some  parts  of  Surrey  heriots  from 
freeholders  are  not  unfrequent. 

(ff)  2  Walk.  Cop.  129.  (h)  1  Watk.  Cop.  272,  277. 

(i)  Jope  v.  Morshead,  6  Beav.  213. 

(/)  Stat.  4  &  5  Vict.  c.  35,  s.  85.     See  also  stat.  13  &  14  Vict.  c.  60,  s.  30. 


368  OF    COPYHOLDS. 

advantage  to  the  lords.  An  act  of  parliament(&)  was  accordingly  passed 
a  few  years  ago,  by  which  the  commutation  of  these  rights  and  interests, 
together  with  the  lord's  rights  in  mines  and  minerals,  if  expressly  agreed 
on,  has  been  greatly  facilitated.  The  machinery  of  the  act  is,  in  many 
respects,  similar  to  that  by  which  the  commutation  of  tithes  was  effected. 
The  rights  and  interests  of  the  lord  are  changed,  by  the  commutation,  into 
[~*3rQ1    a  rer>t-charge  varying  or  not,  as  may  *be  agreed  on,  with  the 

price  of  corn,  together  with  a  small  fixed  fine  on  death  or  alien- 
ation, in  no  case  exceeding  the  sum  of  five  shillings. (/)  By  the  same  act 
facilities  were  also  afforded  for  the  enfranchisement  of  copyhold  lands,  or 
the  conveyance  of  the  freehold  of  such  lands  from  the  lord  to  the  tenant, 
whereby  the  copyhold  tenure,  with  all  its  incidents,  is  forever  destroyed. 
The  enfranchisement  of  copyholds  was  authorized  to  be  made,  either  in 
consideration  of  money  to  be  paid  to  the  lord,  or  of  an  annual  rent 
charge,  varying  with  the  price  of  corn,  issuing  out  of  the  lands  enfran- 
chised, or  in  consideration  of  the  conveyance  of  other  lands. (m)  Provision 
was  also  made  for  charging  the  money,  paid  for  enfranchisement,  on  the 
lands  enfranchised,  by  way  of  mortgage.(w)  The  principal  object  of  these 
enactments  was  to  provide  for  the  case  of  the  lands  being  in  settlement, 
or  vested  in  parties  not  otherwise  capable  of  at  once  entering  into  a  com- 
plete arrangement ;  but  no  provision  was  made  for  compulsory  enfran- 
chisement. More  recently,  however,  acts  have  been  passed  to  make  the 
enfranchisement  of  copyholds  compulsory  at  the  instance  either  of  the 
tenant  or  of  the  lord.(o)  If  the  enfranchisement  be  made  at  the  instance 
of  the  tenant,  the  compensation  is  to  be  a  gross  sum  of  money,  to  be  paid 
at  the  time  of  the  completion  of  the  enfranchisement,  or  to  be  charged  on 
the  land  by  way  of  mortgage  ;  and  where  the  enfranchisement  is  effected 
at  the  instance  of  the  lord,  the  compensation  is  to  be  an  annual  rent 
charge,  to  be  issuing  out  of  the  lands  enfranchised;  subject  to  the  right 
r*3Tn    °^" tae  Part'es>  witn  tne  sanction  of  the  commissioners  appointed 

under  *the  act,  to  agree  that  the  compensation  shall  be  either 

(k)  Stat.  4  &  5  Vict.  c.  35 ;  amended  by  stat.  6  &  7  Vict.  c.  23,  further  amended  and 
explained  by  stat.  7  &  8  Vict.  c.  55,  continued  by  stat.  14  &  15  Vict.  c.  53,  extended  by 
Stat.  15  &  16  Vict.  c.  51,  amended  by  stat.  21  &  22  Vict.  c.  94,  continued  by  stats.  21  & 
22  Vict.  c.  53  ;  23  &  24  Vict.  c.  81  ;  25  &  26  Vict.  c.  73,  and  30  &  31  Vict.  c.  143; 
amended  by  stat.  31  &  32  Vict.  c.  89,  continued  by  stat.  39  &  40  Vict.  c.  69,  and  last 
continued  by  stat.  40  &  41  Vict.  c.  67. 

(/)  Slats.  4  &  5  Vict.  c.  35,  s.  14;   15  &  16  Vict.  c.  51,  s.  41. 

(m)  Stats.  4  &  5  Vict.  c.  35,  ss.  56,  59,  73,  74,  75  ;  6  &  7  Vict.  c.  23  ;  7  &  8  Vict.  c. 
55,  s.  5. 

(«)  Stats.  4  &  5  Vict.  c.  35,  ss.  70,  71,  72  ;   7  &  8  Vict.  c.  55,  s.  4. 

(o)  Stat.  15  &  16  Vict.  c.  51,  amended  by  stat.  21  &  22  Vict.  c.  94. 


OF  ESTATES  IN  COPYIIOLDS.  370 

a  gross  sum  or  a  yearly  rent  charge,  or  a  conveyance  of  land  to  be  settled 
to  the  same  uses  as  the  manor  is  settled. [p]  It  is  also  provided  that  in 
any  enfranchisement  to  be  hereafter  effected  under  the  before-mentioned 
act,  it  shall  not  be  imperative  to  make  the  enfranchisement  rent  charge 
variable  with  the  prices  of  grain  ;  but  the  same  may,  at  the  option  of  the 
parties  or  at  the  discretion  of  the  commissioners,  as  the  case  may  require, 
be  fixed  in  money  or  be  made  variable  as  aforesaid. (q)  Enfranchisements 
under  these  acts  are  irrespective  of  the  validity  of  the  lord's  title. (r)  By 
the  Copyhold  Act,  1858,  an  award  of  enfranchisement,  confirmed  by  the 
commissioners,  has  been  substituted  for  the  deed  of  enfranchisement  re- 
quired by  the  act  of  1852.(6-)  The  acts  also  provide  for  the  extinguish- 
ment of  heriots  due  by  custom  from  tenants  of  freeholds  and  customary 
freeholds. (t)  But  the  curtesy,  dower,  or  freebench  of  persons  married 
before  the  enfranchisement  shall  have  been  completed  is  expressly 
saved  ;(u)  and  all  the  commonable  rights  of  the  tenant  continue  attached 
to  his  lands,  notwithstanding  the  same  shall  have  become  freehold. (a;) 
And  no  enfranchisement  under  these  acts  is  to  affect  the  estate  or  rights 
of  any  lord  or  tenant  in  any  mines  or  minerals  within  or  under  the  lands 
enfranchised  or  any  other  lands,  unless  with  the  express   consent  in 

writing  of  such  lord  or  tenant.(y)     And  nothing  ^therein  con-    ,_ 

•  •  r*371"l 

tained  is  to  interfere  with  any  enfranchisement  which  may  be    L         -1 

made  irrespective  of  the  acts,  where  the  parties  competent  to  do  so  shall 

agree  on  such  enfranchisement. (z)     Where  all  parties  are  sai  juris  and 

agree  to  an  enfranchisement,  it  may  at  any  time  be  made  by  a  simple 

conveyance  of  the  fee  simple  from  the  lord  to  his  tenant.(a) 

(p)  Stats.  15  &  16  Vict.  c.  51,  s.  7  ;  21  &  22  Vict.  c.  94,  s.  21.    See  Lingwood  v.  Gyde, 
L.  R.  2  C.  P.  72  ;  Arden  v.  Wilson,  L.  R.  7  C.  P.  535. 

(q)  Stat.  15  &  16  Vict.  c.  51,  s.  41.     See  also  stat.  21  &  22  Vict.  c.  94,  s.  11. 

(r)  Kerr  v.  Pawson,  Rolls,  4  Jur.,  N.  S.  425  ;  s.  c.  35  Beav.  394. 

(s)  Stat.  21  &  22  Vict.  c.  94,  s.  10. 

(t)  Stat.  21  &  22  Vict.  c.  94,  s.  7,  repealing  stat.  15  &  16  Vict.  c.  51,  s.  27. 

(m)  Stats.  4  &  5  Vict.  c.  35,  s.  79 ;   15  &  16  Vict.  c.  51,  s.  34. 

(x)  Stats.  4  &  5  Vict.  c.  35,  s.  81  ;  15  &  16  Vict.  c.  51,  s.  45. 

(y)  Stat.  15  &  16  Vict.  c.  51,  s.  48.     See  also  stat.  21  &  22  Vict.  c.  94,  s.  14. 

(2)  Stat.  15  &  16  Vict.  c.  51,  s.  55.  (a)  1  Watk.  Cop.  362  ;  1  Scriv.  Cop.  653. 


[*372]  CHAPTER    II. 

OF  THE  ALIENATION  OF  COPYHOLDS. 

The  mode  in  which  the  alienation  of  copyholds  is  at  present  effected, 
so  far  at  least  as  relates  to  transactions  inter  vivos,  still  retains  much  of 
the  simplicity,  as  well  as  the  inconvenience,  of  the  original  method  in 
which  the  alienation  of  these  lands  was  first  allowed  to  take  place.  The 
copyholder  surrenders  the  lands  into  the  hands  of  his  lord,  who  thereupon 
admits  the  alienee.  For  the  purpose  of  effecting  these  admissions,  and 
of  informing  the  lord  of  the  different  events  happening  within  his  manor, 
as  well  as  for  settling  disputes,  it  was  formerly  necessary  that  his  Cus- 
tomary Court,  to  which  all  the  copyholders  were  suitors,  should  from  time 
to  time  be  held.  At  this  court  the  copyholders  present  were  called  the 
homage,  on  account  of  the  ceremony  of  homage  which  they  were  all 
anciently  bound  to  perform  to  their  lord. (a)  In  order  to  form  a  court, 
it  was  formerly  necessary  that  two  copyholders  at  least  should  be  pres- 
ent.^) But  in  modern  times,  the  holding  of  courts  having  degenerated 
into  little  more  than  an  inconvenient  formality,  it  has  been  provided  by 
an  act  of  the  present  reign  that  Customary  Courts  may  be  holden  without 
the  presence  of  any  copyholder;  but  no  proclamation  made  at  any  such 
courts  is  to  affect  the  title  or  interest  of  any  person  not  present,  unless 
notice  thereof  shall  be  duly  served  on  him  within  one  month  ;(c)  and  it  is 
also  provided  that  where,  by  the  custom  of  any  manor,  the  lord  is  author- 
r*orrq-i  ized,  with  *the  consent  of  the  homage,  to  grant  any  common  or 
*-  waste  lands  of  the  manor,  the  court  must  be  duly  summoned 

and  holden  as  before  the  act.(c?)  No  court  can  lawfully  be  held  out  of 
the  manor ;  but  by  immemorial  custom,  courts  for  several  manors  may 
be  held  together  within  one  of  them.(e)  In  order  that  the  transactions 
at  the  Customary  Court  may  be  preserved,  a  book  is  provided,  in  which 
a  correct  account  of  all  the  proceedings  is  entered  by  a  person  duly 
authorized.  This  book,  or  a  series  of  them,  forms  the  court  rolls  of  the 
manor.  The  person  who  makes  the  entries  is  the  steward ;  and  the  court 
rolls  are  kept  by  him,  but  subject  to  the  right  of  the  tenants  to  inspect 
them.(/)     This  officer  also  usually  presides  at  the  court  of  the  manor. 

(a)  Ante,  p.  120.  (b)  1  Scriv.  Cop.  289. 

(c)  Stat.  4  &  5  Vict.  c.  35,  3.  86.  (rf)  Stat.  4  &  5  Vict.  c.  35,  s.  91. 

(e)  1  Scriv.  Cop.  6.  (J)  Ibid.  587,  588. 


OF   THE   ALIENATION    OF   COPYHOLDS.  373 

Before  adverting  to  alienation  by  surrender  and  admittance,  it  will  be 
proper  to  mention  that,  whenever  any  lands  which  have  been  demisable 
time  out  of  mind  by  copy  of  court  roll  fall  into  the  hands  of  the  lord, 
he  is  at  liberty  to  grant  them  to  be  held  by  copy  at  his  will,  according 
to  the  custom  of  the  manor,  under  the  usual  services.^)     These  grants 
may  be  made  by  the  lord  for  the  time  being,  whatever  be  the  extent  of 
his  interest,^)  so  only  that  it  be  lawful:  for  instance,  by  a  tenant  for  a 
term  of  life  or  years.     But  if  the  lord,  instead  of  granting  the  lands  by 
copy,  should  once  make  any  conveyance  of  them  at  the  common  law 
though  it  were  only  a  lease  for  years,  his  power  to  grant  by  copy  would 
forev°er  be  destroyed-!*)     The  steward,  or  his  deputy,  if  duly  authorized 
so  to  do,  may  also  make  grants,  as  well  as  the  lord,  whose  *ser-        _ 
vant  he  is.(i)    It  was  formerly  doubtful  whether  the  steward  or 
his  deputy  could  make  grants  of  copyholds  when  out  of  the  manor.(&) 
But  by  the  act(Z)  to  which  we  have  before  had  occasion  to  refer,  it  is 
provided  that  the  lord  of  any  manor,  or  the  steward,  or  deputy  steward, 
may  grant  at  any  time,  and  at  any  place,  either  within  or  out  of  the 
manor,  any  lands  parcel  of  the  manor,  to  be  held  by  copy  of  court  roll, 
or  according  to  the  custom  of  the  manor,  which  such  lord  shall  for  the 
time  being  be  authorized  and  empowered  to  grant  out  to  be  held  as  afore- 
said •  so  that  such  lands  be  granted  for  such  estate,  and  to  such  person 
only,  as  the  lord,  steward,  or  deputy,  shall  be  authorized  or  empowered 
to  grant  the  same. 

When  a  copyholder  is  desirous  of  disposing  of  his  lands,  the  usual 
method  of  alienation  is  by  surrender  of  the  lands  into  the  hands  of  the 
lord  (usually  through  the  medium  of  his  steward),  to  the  use  of  the 
alienee  and  his  heirs,  or  for  any  other  customary  estate  which  it  may  be 
wished  to  bestow.  This  surrender  generally  takes  place  by  the  sym- 
bolical delivery  of  a  rod,  by  the  tenant  to  the  steward.  It  may  be  made 
either  in  or  out  of  court.  If  made  in  court,  it  is  of  course  entered  on 
the  court  rolls,  together  with  the  other  proceedings ;  and  a  copy  of  so 
much  of  the  roll  as  relates  to  such  surrender  is  made  by  the  steward, 
signed  by  him,  and  stamped  like  a  purchase  deed ;  it  is  then  given  to  the 
purchaser  as  a  muniment  of  his  title.(w)  If  the  surrender  should  be 
made  out  of  court,  a  memorandum  of  the  transaction,  signed  by  the  parties 

(g)  1  Watk.  Cop.  23;   1  Scriv,  Cop.  111. 

(h)  Doe  d.  Rayer  v.  Strickland,  2  Q.  B.  792  (E.  C.  L.  R.  vol.  42). 
(i)  1  Watk.  Cop.  37.  (J)  1  Watk-  C°P-  29" 

(A)  Ibid.  30.  (0  Stat.  4  &  5  Vict.  c.  35,  s.  87. 

(m)  A  form  of  such  a  copy  of  court  roll  will  be  found  in  Appendix  (G). 
22 


374  OF    COPYHOLDS. 

and  the  steward,  is  made,  in  writing,  and  duly  stamped  as  before.(w) 
r;).Q7--1  *In  order  to  give  effect  to  a  surrender  made  out  of  court,  it  was 
L  -*  formerly  necessary  that  due  mention,  or  presentment,  of  the 
transaction  should  he  made  by  the  suitors  or  homage  assembled  at  the 
next,  or,  by  special  custom,  at  some  other  subsequent  court.(o)  And  in 
this  manner  an  entry  of  the  surrender  appeared  on  the  court  rolls,  the 
steward  entering  the  presentment  as  part  of  the  business  of  the  court. 
But  by  the  act  above  mentioned,  it  is  provided  that  surrenders,  copies 
of  which  may  be  delivered  to  the  lord,  his  steward,  or  deputy  steward, 
shall  be  forthwith  entered  on  the  court  rolls ;  which  entry  is  to  be 
deemed  to  be  an  entry  made  in  pursuance  of  a  presentment  by  the 
homao-e.(p)  So  that  in  this  case  the  ceremony  of  presentment  is  now 
dispensed  with.  When  the  surrender  has  been  made,  the  surrenderor 
still  continues  tenant  to  the  lord,  until  the  admittance  of  the  surrenderee. 
The  surrenderee  acquires  by  the  surrender  merely  an  inchoate  right,  to 
be  perfected  by  admittance.^)  This  right  was  formerly  inalienable  at 
law,  even  by  will,  until  rendered  devisable  by  the  new  statute  for  the 
amendment  of  the  laws  with  respect  to  wills  ;(r)  but,  like  a  possibility  in 
the  case  of  freeholds,  it  may  always  be  released,  by  deed,  to  the  tenant 
of  the  lands. (s) 

A  surrender  of  copyholds  may  be  made  by  a  man  to  the  use  of  his 
wife,  for  such  a  surrender  is  not  a  direct  conveyance,  but  operates  only 
r*^7£1  tnrough  ^ie  instrumentality  of  the  lord.(^)  And  a  valid  sur- 
"-  render  may  at  any  time  be  made  of  the  lands  of  a  married 

woman,  by  her  husband  and  herself:  she  being  on  such  surrender  sepa- 
rately examined,  as  to  her  free  consent,  by  the  steward  or  his  deputy. (m) 
The  Vendor  and  Purchaser  Act,  1874, (z)  now  provides(?/)  that  where 
any  copyhold  hereditament  shall  be  vested  in  a  married  woman  as  a 
bare  trustee^)  she  may  surrender  the  same  as  if  she  were  a  feme  sole. 

(n)  By  the  Stamp  Act,  1870,  the  stamp  duty  on  a  memorandum  of  a  surrender  if  made 
out  of  court,  or  on  the  copy  of  court  roll  if  made  in  court,  is  the  same  as  on  the  sale 
or  mortgage  of  a  freehold  estate  ;  but  if  not  made  on  a  sale  or  mortgage,  the  duty  is 
10s.     Stat.  33  &  34  Vict.  c.  97,  sched.  tit.  Copyhold  and  Customary  Estates. 

(o)  1  Watk.  Cop.  79  ;   1  Scriv.  Cop.  277.         (p)  Stat.  4  &  5  Vict.  c.  35,  s.  89. 

(q)  Doe  d.  Tofield  v.  Tofield,  11  East  246;  Rex  v.  Dame  Jane  St.  John  Mildmay,  5 
B.  &  Ad.  254  (E.  C.  L.  R.  vol.  27) ;  Doe  d.  Winder  v.  Lawes,  7  Ad.  &  E.  195  (E.  C.  L. 
B.  vol.  34). 

(r)  7  Will.  IV.  &  1  Vict.  c.  26,  s.  3. 

(t)  Kite  and  Queinton's  Case,  4  Rep.  25  a;  Co.  Litt.  60  a. 

(/)  Co.  Cop.  s.  35;  Tracts,  p.  79.  («)  1  Watk.  Cop.  63. 

\x)  Stat.  37  &  38  Vict.  c.  78.  (y)  Sect.  6. 

(z)  See  ante,  pp.  116,  232. 


OF  THE  ALIENATION  OF  COPYHOLDS.  376 

When  the  surrender  has  been  made,  the  surrenderee  has,  at  any  time, 
a  right  to  procure  admittance  to  the  lands  surrendered  to  his  use ;  and, 
on  such  admittance,  he  becomes  at  once  tenant  to  the  lord,  and  is  bound 
to  pay  him  the  customary  fine.  This  admittance  is  usually  taken  imme- 
diately ;{a)  but,  if  obtained  at  any  future  time,  it  will  relate  back  to  the 
surrender ;  so  that,  if  the  surrenderor  should,  subsequently  to  the  sur- 
render, have  surrendered  to  any  other  person,  the  admittance  of  the 
former  surrenderee,  even  though  it  should  be  subsequent  to  the  admit- 
tance of  the  latter,  will  completely  displace  his  estate.(6)  Formerly  a 
steward  was  unable  to  admit  tenants  out  of  a  manor  ;(e)  but,  by  the  act 
for  the  improvement  of  copyhold  tenure,  the  lord,  his  steward,  or  deputy, 
may  admit  at  any  time  and  at  any  place,  either  within  or  out  of  the 
manor,  and  without  holding  a  court ;  and  the  admission  is  rendered  valid 
without  any  presentment  of  the  surrender,  in  pursuance  of  which  admis- 
sion may  have  been  granted. (d) 

The  alienation  of  copyholds  by  will  was  formerly  *effected  in  ^^377-] 
a  similar  manner  to  alienation  inter  vivos.  It  was  necessary  that 
the  tenant  who  wished  to  devise  his  estate  should  first  make  a  surrender 
of  it  to  the  use  of  his  will.  His  will  then  formed  part  of  the  surrender, 
and  no  particular  form  of  execution  or  attestation  was  necessary.  The 
devisee,  on  the  decease  of  his  testator,  was,  until  admittance,  in  the  same 
position  as  a  surrenderee.(e)  By  a  statute  of  Geo.  III.,(/)  a  devise  of 
copyholds,  without  any  surrender  to  the  use  of  the  will,  was  rendered  as 
valid  as  if  a  surrender  had  been  made.(^)  The  act  for  the  amendment 
of  the  laws  with  respect  to  wills  requires  that  wills  of  copyhold  lands 
should  be  executed  and  attested  in  the  same  manner  as  wills  of  free- 
holds.^) But  a  surrender  to  the  use  of  the  will  is  still  unnecessary ; 
and  a  surrenderee,  or  devisee,  who  has  not  been  admitted,  is  now  empow- 
ered to  devise  his  interest.^")  Formerly,  the  devisee  under  a  will  was 
accustomed,  at  the  next  Customary  Court  held  after  the  decease  of  his 
testator,  to  bring  the  will  into  court ;  and  a  presentment  was  then  made 

(a)  See  Appendix  (G).  (b)  1  Watk.  Cop.  103. 

(c)  Doe  d.  Leach  v.  Whittaker,  5  B.  &  Ad.  409,  435  (E.  C.  L.  R.  vol.  27)  ;  Doe  d. 
Gutteridge  v.  Sowerby,  7  C.  B.,  N.  S.  599  (E.  C.  L.  R.  vol.  97). 

(d)  Stat.  4  &  5  Vict.  c.  35,  ss.  88,  90. 

\e)  Wainewright  v.  Elwell,  1  Mad.  627;  Phillips  v.  Phillips,  1  My.  &  K.  649,  664. 
(/)  55  Geo.  III.  c.  192,  12th  July,  1815. 

(ff)  Doe  d.  Nethercote  v.  Bartle,  5  B.  &  Aid.  492  (E.  C.  L.  R.  vol.  7). 
(A)  Stat.  7  Will.  IV.  &   1  Vict.  c.  26,  ss.  2,  3,  4,  5,  9  ;  see  ante,  p.  204;  Garland  v. 
Mead,  6  L.  Rep.  Q.  B.  441. 
(t)  Sect.  3. 


377  OF   COPYHOLDS. 

of  the  decease  of  the  testator,  and  of  so  much  of  his  will  as  related  to 
the  devise.  After  this  presentment  the  devisee  was  admitted,  according 
to  the  tenor  of  the  will.  But  under  the  act  for  the  improvement  of 
copyhold  tenure,  the  mere  delivery  to  the  lord,  or  his  steward,  or  deputy 
steward,  of  a  copy  of  the  will  is  sufficient  to  authorize  its  entry  on  the 
court  rolls,  without  the  necessity  of  any  presentment;  and  the  lord,  or 
his  steward,  or  deputy  steward,  may  admit  the  devisee  at  once,  without 
holding  any  court  for  the  purpose.(&) 

*Sometimes,  on  the  decease  of  a  tenant,  no  person  came  in  to 
L  J  be  admitted  as  his  heir  or  devisee.  In  this  case  the  lord,  after 
making  due  proclamation  at  three  consecutive  courts  of  the  manor  for 
any  person  having  right  to  the  premises  to  claim  the  same  and  be  ad- 
mitted thereto,  is  entitled  to  seize  the  lands  into  his  own  hands  quousque 
as  it  is  called,  that  is,  until  some  person  claims  admittance  ;(l)  and  by 
the  special  custom  of  some  manors,  he  is  entitled  to  seize  the  lands  abso- 
lutely. But  as  this  right  of  the  lord  might  be  very  prejudicial  to  infants, 
married  women,  and  lunatics  or  idiots  entitled  to  admittance  to  any  copy- 
hold lands,  in  consequence  of  their  inability  to  appear,  special  provision 
has  been  made  by  act  of  parliament  in  their  behalf.(m)  Such  persons  are 
accordingly  authorized  to  appear,  either  in  person  or  by  their  guardian, 
attorney,  or  committee,  as  the  case  may  be  ;{n)  and  in  default  of  such 
appearance,  the  lord  or  his  steward  is  empowered  to  appoint  any  fit 
person  to  be  attorney  for  that  purpose  only,  and  by  such  attorney  to 
admit  every  such  infant,  married  woman,  lunatic,  or  idiot,  and  to  impose 
the  proper  fine.(o)  If  the  fine  be  not  paid,  the  lord  may  enter  and 
receive  the  rents  till  it  be  satisfied  out  of  them  ;{p)  and  if  the  guardian  of 
any  infant,  the  husband  of  any  married  woman,  or  the  committee  of  any 
lunatic  or  idiot,  should  pay  the  fine,  he  will  be  entitled  to  a  like  privi- 
lege.^) But  no  absolute  forfeiture  of  the  lands  is  to  be  incurred  by  the 
neglect  or  refusal  of  any  infant,  married  woman,  lunatic,  or  idiot  to  come 
in  and  be  admitted,  or  for  their  *omission,  denial,  or  refusal  to 
L         -I    pay  the  fine  imposed  on  their  admittance.(r) 

(k)  Stat.  4  &  5  Vict.  c.  35,  ss.  88,  89,  90. 

(I)  1  Watk.  Cop.  234;  1  Seriv.  Cop.  355  ;  Doe  d.  Bover  v.  Trueman,  1  Barn.  &  Adol. 
736  (E.  C.  L.  R.  vol.  20). 

(m)  Stats.  11  Geo.  IV.  &  1  Will.  IV.  c.  65  ;  and  16  &  17  Vict.  c.  70,  s.  108  et  seq. 

(n)  Stats.  11  Geo.  IV.  &  1  Will.  IV.  c.  65,  ss.  3,  4;  16  &  17  Vict.  c.  70,  s.  108. 

(o)  Stats.  11  Geo.  IV.  &  1  Will.  IV.  c.  65,  s.  5  ;   16  &  17  Vict.  c.  70,  ss.  108,  109. 

(p)  Stats.  11  Geo.  IV.  &  1  Will.  IV.  c.  65,  ss.  6,  7  ;  16  &  17  Vict.  c.  70,  s.  110. 

(q)  Stats.  11  Geo.  IV.  &  1  Will.  IV.  c.  65,  s.  8  ;   16  &  17  Vict.  c.  70,  s.  111. 

(r)  Stats.  11  Geo.  IV.  &  1  Will.  IV.  c.  65,  s.  9  ;  16  &  17  Vict.  c.   70,  s.   112.     See 


OF   THE   ALIENATION    OF    COPYHOLDS.  379 

Although  mention  has  been  made  of  surrenders  to  the  use  of  the  sur- 
renderee,  it  must  not,  therefore,  be  supposed  that  the  Statute  of  Uses(s) 
has  any  application  to  copyhold  lands.  This  statute  relates  exclusively 
to  freeholds.  The  seisin  or  feudal  possession  of  all  copyhold  land  ever 
remains,  as  we  have  seen,(f)  vested  in  the  lord  of  the  manor.  Notwith- 
standing that  custom  has  given  to  the  copyholder  the  enjoyment  of  the 
lands,  they  still  remain,  in  contemplation  of  law,  the  lord's  freehold. 
The  copyholder  cannot,  therefore,  simply  by  means  of  a  surrender  to  his 
use  from  a  former  copyholder,  be  deemed,  in  the  words  of  the  Statute  of 
Uses,  in  lawful  seisin  for  such  estate  as  he  has  in  the  use ;  for  the  estate 
of  the  surrenderor  is  customary  only,  and  the  estate  of  the  surrenderee 
cannot,  consequently,  be  greater.  Custom,  however,  has  now  rendered 
the  title  of  the  copyholder  quite  independent  of  that  of  his  lord.  When 
a  surrender  of  copyholds  is  made  into  the  hands  of  the  lord,  to  the  use 
of  any  person,  the  lord  is  now  merely  an  instrument  for  carrying  the 
intended  alienation,  into  effect;  and  the  title  of  the  lord,  so  that  he  be 
lord  de  facto,  is  quite  immaterial  to  the  validity  either  of  the  surrender 
or  of  the  subsequent  admittance  of  the  surrenderee.(w)  But  if  a  sur- 
render should  be  made  by  one  person  to  the  use  of  another,  upon  ti'ust 
for  a  third,  the  Chancery  Division  of  the  High  Court  would  exercise  the 
same  jurisdiction  over  the  surrenderee,  in  compelling  him  to  perform  the 
trust,  as  it  *would  in  the  case  of  freeholds  vested  in  a  trustee. 
And  when  copyhold  lands  form  the  subject  of  settlement,  the  ^  -• 
usual  plan  is  to  surrender  them  to  the  use  of  trustees,  as  joint  tenants  of 
a  customary  estate  in  fee  simple,  upon  such  trusts  as  will  effect,  in  equity, 
the  settlement  intended.  The  trustees  thus  become  the  legal  copyhold 
tenants  of  the  lord,  and  account  for  the  rents  and  profits  to  the  persons 
beneficially  entitled.  The  equitable  estates  which  are  thus  created  are 
of  a  similar  nature  to  the  equitable  estates  in  freeholds,  of  which  we  have 
already  spoken  ;(x)  and  a  trust  for  the  separate  use  of  a  married  woman 
may  be  created  as  well  out  of  copyhold  as  out  of  freehold  lands. {y)  An 
equitable  estate  tail  in  copyholds  may  be  barred  by  deed,  in  the  same 
manner  in  every  respect  as  if  the  lands  had  been  of  freehold  tenure. (z) 
But  the  deed,  instead  of  being  enrolled  in  the  Chancery  Division  of 
the    High    Court,(«)    must    be    entered    on    the   court    rolls    of   the 

Doe  d.  Twining  v.  Muscott,  12  llee.  &  Wels.  832,  842  ;  Dimes  v.  Grand  Junction  Canal 
Company,  9  Q.  B.  469,  510  (E.  C.  L.  R.  vol.  58). 

(s)  Stat.  27  Hen.  VIII.  c.  10;  ante,  p.  157. 

(t)  Ante,  p   353.  (u)  1  Watk.  Cop.  -74.. 

(z)  Ante,  p.  162  et  seq.  \y)  See  ante,  pp.  223,  224. 

(z)  See  ante,  pp.  48,  52  et  seq.  (a)  Stat.  3  &  4  Will.  IV.  c.  74,  s.  54. 


380  OF   COPYHOLDS. 

manor.(5)  And  if  there  be  a  protector,  and  he  consent  to  the  dis- 
position by  a  distinct  deed,  such  deed  must  be  executed  by  him  either 
on,  or  any  time  before,  the  day  on  which  the  deed  barring  the  entail 
is  executed ;  and  the  deed  of  consent  must  also  be  entered  on  the  court 
rolls,  (c) 

As  the  owner  of  an  equitable  estate  has,  from  the  nature  of  his  estate, 
no  legal  right  to  the  lands,  he  is  not  himself  a  copyholder.  He  is  not  a 
tenant  to  the  lord :  this  position  is  filled  by  his  trustee.  The  trustee, 
therefore,  is  admitted,  and  may  surrender ;  but  the  cestui  que  trust  can- 
P^oo-i-i  not  adopt  these  means  of  disposing  of  his  equitable  *interest.(cZ) 
To  this  general  rule,  however,  there  have  been  admitted,  for  con- 
venience sake,  two  exceptions.  The  first  is  that  of  a  tenant  in  tail  whose 
estate  is  merely  equitable ;  by  the  act  for  the  abolition  of  fines  and 
recoveries,(e)  the  tenant  of  a  merely  equitable  estate  tail  is  empowered 
to  bar  the  entail,  either  by  deed  in  the  manner  above  described,  or  by 
surrender  in  the  same  manner  as  if  his  estate  were  legal.(/)  The 
second  exception  relates  to  married  women,  it  being  provided  by  the 
same  act(^)  that,  whenever  a  husband  and  wife  shall  surrender  any  copy- 
hold lands  in  which  she  alone,  or  she  and  her  husband  in  her  right,  may 
have  any  equitable  estate  or  interest,  the  wife  shall  be  separately  examined 
in  the  same  manner  as  she  would  have  been  had  her  estate  or  interest 
been  at  law  instead  of  in  equity  merely  ;(h)  and  every  such  surrender, 
when  such  examination  shall  be  taken,  shall  be  binding  on  the  married 
woman  and  all  persons  claiming  under  her ;  and  all  surrenders  pre- 
viously made  of  lands  similarly  circumstanced,  where  the  wife  shall  have 
been  separately  examined  by  the  person  taking  the  surrender,  are 
thereby  declared  to  be  good  and  valid.  But  these  methods  of  convey- 
ance, though  tolerated  by  the  law,  are  not  in  accordance  with  principle ; 
for  an  equitable  estate  is,  strictly  speaking,  an  estate  in  the  contempla- 
tion of  equity  only,  and  has  no  existence  anywhere  else.  As,  therefore, 
an  equitable  estate  tail  in  copyholds  may  properly  be  barred  by  a  deed 
entered  on  the  court  rolls  of  the  manor,  so  an  equitable  estate  or  interest 
in  copyholds  belonging  to  a  married  woman  is  more  properly  conveyed 
by  a  deed,  executed  with  her  husband's  concurrence,  and  acknowledged 

(b)  Sect.  53.  It  has  been  decided,  contrary  to  the  prevalent  impression,  that  the 
entry  must  be  made  within  six  calendar  months.  Honeywood  v.  Forster,  M.  R.,  9  W. 
R.  855  ;  30  Beav.  1 ;  Gibbons  v.  Snape,  32  Beav.  130. 

(c)  Stat.  3  &  4  Will.  IV.  c.  74,  s.  53.  (d)  1  Scriv.  Cop.  262. 
(e)  Stat.  3  &  4  Will.  IV.  c.  74,  s.  50.                 (/)  See  ante,  p.  363. 
(ff)  Stat.  3  &  4  Will.  IV.  c.  74,  s.  90.  (A)  See  ante,  p.  376. 


OF    THE    ALIENATION    OF    COPYHOLDS.  382 

by  her  in   the  same  manner  as  if  the  lands  *were  freehold. (i)    r*QQ9n 
And  the  act  for  the  abolition  of  fines  and  recoveries,  by  which 
this  mode  of  conveyance  is  authorized,  does  not  require  that  such  a  deed 
should  be  entered  on  the  court  rolls. 

Copyhold  estates  admit  of  remainders  analogous  to  those  which  may 
be  created  in  estates  of  freehold.(,/)  And  when  a  surrender  or  devise  is 
made  to  the  use  of  any  person  for  life,  with  remainders  over,  the  admis- 
sion of  the  tenant  for  life  is  the  admission  of  all  persons  having  estates 
in  remainder,  unless  there  be  in  the  manor  a  special  custom  to  the  con- 
trary.^) A  vested  estate  in  remainder  is  capable  of  alienation  by  the 
usual  mode  of  surrender  and  admittance.  Contingent  remainders  of 
copyholds  have  always  had  this  advantage,  that  they  had  never  been 
liable  to  destruction  by  the  sudden  determination  of  the  particular  estate 
on  which  they  depend.  The  freehold,  vested  in  the  lord,  is  said  to  be 
the  means  of  preserving  such  remainders  until  the  time  when  the  par- 
ticular estate  would  regularly  have  expired. (I)  In  this  respect  they 
resemble  contingent  remainders  of  equitable  or  trust  estates  of  freeholds, 
as  to  which  we  have  seen  that  the  legal  seisin,  vested  in  the  trustees, 
preserves  the  remainders  from  destruction  ;(m)  but  if  the  contingent 
remainder  be  not  ready  to  come  into  possession  the  moment  the  particular 
estate  would  naturally  and  regularly  have  expired,  such  contingent 
remainder  will  fail  altogether.(?i)  To  this  rule,  however,  an  exception 
has  now  been  made  by  the  act  to  amend  the  *law  as  to  con-  r^ooq-i 
tingent  remainders,(o)  which  extends  to  hereditaments  of  any 
tenure ;  although  it  affects  only  such  a  contingent  remainder  as  would 
have  been  valid  as  a  springing  or  shifting  use,  or  executory  devise  or 
other  limitation,  had  it  not  had  a  sufficient  estate  to  support  it  as  a  con- 
tingent remainder. 

Executory  devises  of  copyholds,  similar  in  all  respects  to  executory 
devises  of  freeholds,  have  long  been  permitted.(p)     And  directions  to 

(i)  Stat.  3  &  4  Will.  IV.  c.  74,  s.  77.     See  ante,  p.  231. 

(j)  See  ante,  pp.  250,  262. 

{k)  1  Watk.  Cop.  276  ;  Doe  d.  Winder  v.  Lawes,  1  Ad.  &  E.  195  (E.  C.  L.  R.  vol.  34)  ; 
Smith  v.  Glasscock,  4  C.  B.  N.  S.  357  (E.  C.  L.  R.  vol.  93)  ;  Randfield  v.  Randfield,  1 
Drew.  &  S.  310.  See,  however,  as  to  the  reversioner,  Reg.  v.  Lady  of  the  Manor  of 
Dallingham,  8  Ad.  &  E.  858  (E.  C.  L.  R.  vol.  35). 

(Z)  Fearne,  Cont.  Rem.  319;  1  Watk.  Cop.  196;  1  Scriv.  Cop.  477;  Pickersgill  v. 
Gray,  30  Beav.  352. 

(m)  Ante,  p.  285.  (n)  Gilb.  Ten.  266;  Fearne,  Cont.  Rem.  320. 

(o)  Stat.  40  &  41  Vict.  c.  33,  ante,  pp.  271,  316,  319. 

(p)  1  Watk.  Cop.  210. 


383  OF    COPYHOLDS. 

executors  to  sell  the  copyhold  lands  of  their  testator  (which  directions, 
we  have  seen,(g)  give  rise  to  executory  interests)  are  still  in  common  use ; 
for,  when  such  a  direction  is  given,  the  executors,  taking  only  a  power 
and  no  estate,  have  no  occasion  to  be  admitted  ;  and  if  they  can  sell 
before  the  lord  has  had  time  to  hold  his  three  Customary  Courts  for 
making  proclamation  in  order  to  seize  the  land  quousque,(r)  the  purchaser 
from  them  will  alone  require  admittance  by  virtue  of  his  executory  estate 
which  arose  on  the  sale.  By  this  means  the  expense  of  only  one  admit- 
tance is  incurred  ;  whereas,  had  the  lands  been  devised  to  the  executors 
in  trust  to  sell,  they  must  first  have  been  admitted  under  the  will,  and 
then  have  surrendered  to  the  purchaser,  who  again  must  have  been  ad- 
mitted under  their  surrender.  And  in  a  recent  case,  where  a  testator 
devised  copyholds  to  such  uses  as  his  trustees  should  appoint,  and  sub- 
ject thereto  to  the  use  of  his  trustees,  their  heirs  and  assigns  forever, 
with  a  direction  that  they  should  sell  his  copyholds,  it  was  decided  that 
the  trustees  could  make  a  good  title  without  being  admitted,  even  al- 
though the  lord  had  in  the  meantime  seized  the  lands  quousque  for  want 
r*38<n  of  a  tenant.(s)  *But  it  has  recently  been  decided  that  the  lord 
■*  of  a  manor  is  not  bound  to  accept  a  surrender  of  copyholds 
inter  vivos,  to  such  uses  as  the  surrenderee  shall  appoint,  and,  in  default 
of  appointment,  to  the  use  of  the  surrenderee,  his  heirs  and  assigns. (t) 
This  decision  is  in  accordance  with  the  old  rule,  which  construed  surren- 
ders of  copyhold  in  the  same  manner  as  a  conveyance  of  freeholds  inter 
vivos  at  common  law.(w)  If,  however,  the  lord  should  accept  such  a  sur- 
render, he  will  be  bound  by  it,  and  must  admit  the  appointee  under  the 
power  of  appointment,  in  case  such  power  should  be  exercised. [x) 

With  regard  to  the  interest  possessed  by  husband  and  wife  in  each 
other's  copyhold  lands,  the  Married  Women's  Property  Act,  1870,(  y)  pro- 

(5-)  Ante,  p.  313.  The  stat.  21  Hen.  VIII.  c.  4  applies  to  copyholds  :  Peppercorn  v. 
Wayman,  5  De  Gex  &  S.  230  ;  ante,  p.  313. 

(r)  See  ante,  p.  378. 

(*)  Glass  v.  Richardson,  9  Hare  698,  2  De  Gex,  M.  &  G.  658  ;  and  see  The  Queen  v. 
Corbett,  1  E.  &  B.  836  (E.  C.  L.  R.  vol.  72) ;  The  Queen  v.  Wilson,  3  Best  &  Smith  201 
(E.  C.  L.  R.  vol.  113). 

(1)  Flack  v.  The  Master,  Fellows,  and  Scholars  of  Downing  College,  C.  P.  17  Jur.  697, 
13  C.  B.  945  (E.  C.  L.  R.  vol.  76). 

(u)  1  Watk.  Cop.  108,  110  ;   1  Scriv.  Cop.  178'. 

(z)  The  King  v.  The  Lord  of  the  Manor  of  Oundle,  1  Ad.  &  E.  283  (E.  C.  L.  R.  vol. 
28)  ;  Boddington  v.  Abernethy,  5  B.  &  C.  776  (E.  C.  L.  R.  vol.  11)  ;  9  Dow.  &  Ry.  626; 
1  Scriv.  Cop.  226,  229  ;  Eddleston  v.  Collins,  3  De  Gex,  M.  &  G.  1. 

(y)  Stat.  33  &  34  Vict.  c.  93,  passed  9th  August,  1870. 


OF   THE   ALIENATION    OF    COPYHOLDS.  384 

vides,(.s)  as  we  have  seen, (a)  that  when  any  copyhold  or  customary 
property  shall  descend  upon  any  woman  married  after  the  passing  of 
that  act,  as  heiress  or  co-heiress  of  an  intestate,  the  rents  and  profits 
of  such  property  shall,  subject  and  without  prejudice  to  the  trusts  of  any 
settlement  affecting  the  same,  belong  to  such  woman  for  her  separate 
use.  But  in  cases  not  affected  by  this  statute,  the  husband  has  the 
whole  income  of  his  wife's  land,  during  the  coverture,  although  a  special 
custom  appears  to  be  necessary  to  entitle  him  to  be  tenant  by 
curtesy. (b)  A  special  custom  also  is  required  to  entitle  the  wife  to  any 
interest  in  the  lands  of  her  husband  after  his  decease.  Where  such 
custom  exists,  the  wife's  interest  is  termed  her  freebeneh ;  and  r^oor-. 
it  generally  consists  of  a  life  interest  in  one  divided  third  part  of  L  J 
the  lands,  or  sometimes  of  a  life  interest  in  the  entirety  ;(r?)  and,  like 
dower  under  the  old  law,  freebeneh  is  paramount  to  the  husband's 
debts. (d)  Freebeneh,  however,  usually  differs  from  the  ancient  right 
of  dower  in  this  important  particular,  that  whereas  the  widow  was  en- 
titled to  dower  of  all  freehold  lands  of  which  her  husband  was  solely 
seised  at  any  time  during  the  coverture,(<?)  the  right  to  freebeneh  does  not 
usually  attach  until  the  actual  decease  of  the  husband.(/)  Freebeneh, 
therefore,  is  in  general  no  impediment  to  the  free  alienation  by  the  hus- 
band of  his  copyhold  lands,  without  his  wife's  concurrence.  To  this 
rule  the  important  manor  of  Cheltenham  forms  an  exception ;  for,  by 
the  custom  of  this  manor,  as  settled  by  act  of  parliament,  the  freebeneh 
of  widows  attaches,  like  the  ancient  right  of  dower  out  of  freeholds,  on 
all  the  copyhold  lands  of  inheritance  of  which  their  husbands  were  ten- 
ants at  any  time  during  the  coverture.(A)  The  act  for  the  amendment 
of  the  law  relating  to  dower^')  does  not  extend  to  freebeneh. (k) 

(z)  Sect.  8.  (a)  Ante,  p.  225. 

(b)  2  Watk.  Cop.  71.  See  as  to  freeholds,  ante,  p.  227. 

(c)  1  Scriv.  Cop.  89.  (d)  Spyer  v.  Hyatt,  20  Bear.  621. 
(/)  Ante,  p.  232.  (/)  2  Watk.  Cop.  73. 

(h)  Doe  d.  Riddell  v.  Gwinell,  1  Q.  B.  682  (E.  C.  L.  R.  vol.  41). 

(i)  Stat  3  &  4  Will.  IV.  c.  105  ;  ante,  p.  236. 

(k)  Smith  v.  Adams,  18  Beav.  499,  5  De  Gex,  M.  &  G.  712. 


[*386]  *PART  IV. 

OF  PERSONAL   INTERESTS   IN  REAL   ESTATE. 

The  subjects  which  have  hitherto  occupied  our  attention  derive  a  great 
interest  from  the  antiquity  of  their  origin.  We  have  seen  that  the  dif- 
ference between  freehold  and  copyhold  tenure  has  arisen  from  the.  dis- 
tinction which  prevailed,  in  ancient  times,  between  the  two  classes  of 
freemen  and  villeins  ;(a)  and  that  estates  of  freehold  in  lands  and  tene- 
ments owe  their  origin  to  the  ancient  feudal  system. (b)  The  law  of  real 
property,  in  which  term  both  freehold  and  copyhold  interests  are 
included,  is  full  of  rules  and  principles  to  be  explained  only  by  a  refer- 
ence to  antiquity ;  and  many  of  those  rules  and  principles  were,  it  must 
be  confessed,  much  more  reasonable  and  useful  when  they  were  first 
instituted  than  they  are  at  present.  The  subjects,  however,  on  which 
we  are  now  about  to  be  engaged  possess  little  of  the  interest  which 
arises  from  antiquity,  although  their  present  value  and  importance  are 
unquestionably  great.  The  principal  interests  of  a  personal  nature, 
derived  from  landed  property,  are  a  term  of  years  and  a  mortgage  debt. 
The  origin  and  reason  of  the  personal  nature  of  a  term  of  years  in  land 
have  been  already  attempted  to  be  explained  ;(c)  and  at  the  present  day, 
leasehold  interests  in  land,  in  which  amongst  other  things  all  building 
leases  are  included,  form  a  subject  sufficiently  important  to  require  a 
separate  consideration.  The  personal  nature  of  a  mortgage  debt  was 
l~*3871  not  *c^ear^J  established  till  long  after  a  term  of  years  was  con- 
sidered as  a  chattel. (d)  But  it  is  now  settled  that  every  mort- 
gage, whether  with  or  without  a  bond  or  covenant  for  the  repayment  of 
the  money,  forms  part  of  the  personal  estate  of  the  lender  or  mortgagee. (e) 
And  when  it  is  known  that  the  larger  proportion  of  the  lands  in  this 
kingdom  is  at  present  in  mortgage,  a  fact  generally  allowed,  it  is  evident 
that  a  chapter  devoted  to  mortgages  cannot  be  superfluous. 

(a)  Ante,  p.  349.  (fi)  Ante,  p.  IT. 

(c)  Ante,  p.  8. 

(d)  Thornborough  v.  Baker,  1  Cha.  Ca.  283  ;   3  Swanst.  628,  anno  1675  ;  Tabor  v. 
Tabor,  3  Swanst.  636. 

(e)  Co.  Litt.  208  a,  n.  (1). 


*CHAPTER   I.  [*388] 

OF    A    TERM    OF   YEARS.1 

At  the  present  day,  one  of  the  most  important  kinds  of  chattel  or  per- 
sonal interests  in  landed  property  is  a  term  of  years,  hy  which  is  under- 
stood, not  the  time  merely  for  which  a  lease  is  granted,  but  also  the 
interest  acquired  by  the  lessee.  Terms  of  years  may  practically  be  con- 
sidered as  of  two  kinds ;  first,  those  which  are  created  by  ordinary  leases, 
which  are  subject  to  a  yearly  rent,  which  seldom  exceed  ninety-nine  years, 
and  in  respect  of  which  so  large  a  number  of  the  occupiers  of  lands  and 
houses  are  entitled  to  their  occupation ;  and,  secondly,  those  which  are 
created  by  settlements,  wills,  or  mortgage  deeds,  in  respect  of  which  no 
rent  is  usually  reserved,  which  are  frequently  for  one  thousand  years  or 
more,  which  are  often  vested  in  trustees,  and  the  object  of  which  is  usu- 
ally to  secure  the  payment  of  money  by  the  owner  of  the  land.2  But 
although  terms  of  years  of  different  lengths  are  thus  created  for  different 
purposes,  it  must  not,  therefore,  be  supposed  that  a  long  term  of  years 
is  an  interest  of  a  different  nature  from  a  short  one.  On  the  contrary, 
all  terms  of  years  of  whatever  length  possess  precisely  the  same  attri- 
butes in  the  eye  of  the  law. 

The  consideration  of  terms  of  the  former  kind,  or  those  created  by 
ordinary  leases,  may  conveniently  be  preceded  by  a  short  notice  of  a 
tenancy  at  will,  and  a  tenancy  by  sufferance.  A  tenancy  at  will  may  be 
*created  by  parol(a)  or  by  deed;  it  arises  when  a  person  lets  pggon 
land  to  another,  to  hold  at  the  will  of  the  lessor  or  person  let- 
ting.^) The  lessee,  or  person  taking  the  lands,  is  called  a  tenant  at 
will ;  and,  as  he  may  be  turned  out  when  his  landlord  pleases,  so  he  may 
leave  when  he  likes.3     A  tenant  at  will  is  not  answerable  for  mere  per- 

(a)  Stat.  29  Car.  II.  c.  3,  s.  1.  (6)  Litt.  s.  68  ;  2  Black.  Com.  145. 


1  The  law  of  Landlord  and  Tenant  was  English  settlements  (see  ante,  p.  284),  by 
made  the  subject  of  a  course  of  lectures  at  which  portions  are  raised  for  daughters, 
the  Law  Institution  in  London,  by  the  late  younger  sons,  &c,  and  are  but  little  in  use 
Mr.  John  William  Smith,  *the  editor  of  on  this  side  of  the  Atlantic.  R. 
Smith's  Leading  Cases,  &c,  and  these  have  3  "  For,"  says  Coke,  "  it  is  regularly  true 
been  reprinted  in  this  country,  with  anno-  that  every  lease  at  will  must  in  law  be  at 
tations  by  Mr.  Morris.                             R.  the  will  of  both   parties,  and,  therefore, 

2  These   are   part  of  the  machinery  of  when  the  lease  is  made  to  have  and  to  hold 


389 


OF    PERSONAL   INTERESTS    IN    REAL    ESTATE. 


missive  waste,  (c)  He  is  allowed,  if  turned  out  by  his  landlord,  to  reap 
what  he  has  sown,  or,  as  it  is  legally  expressed,  to  take  the  emblements  ;(d) 
and  if  he  should  be  within  the  provisions  of  the  Agricultural  Holdings 
(England)  Act,  1875,(e)  he  will  be  entitled  to  compensation  for  improve- 
ments according  to  the  provisions  of  the  act.  But,  as  this  kind  of  letting 
is  very  inconvenient  to  both  parties,  it  is  scarcely  ever  adopted ;  and,  in 
construction  of  law,  a  lease  at  an  annual  rent,  made  generally  without 
expressly  stating  it  to  be  at  will,(/)  and  without  limiting  any  certain 
period,  is  not  a  lease  at  will,  but  a  lease  from  year  to  year,^)1  of  which 
we  shall  presently  speak.  When  property  is  vested  in  trustees,  the 
cestui  que  trust  is,  as  we  have  seen,(/i)  absolutely  entitled  to  such  prop- 
erty in  equity.  But  as  the  courts  of  law  did  not  recognize  trusts,  they 
consider  the  cestui  que  trust,  when  in  possession,  to  be  merely  the  tenant 
at  will  of  his  trustees  ;(i)  and  as  the  distinction  between  law  and  equity 
has  not  been  abolished  by  the  Judicature  Acts,  a  cestui  que  trust,  whilst 

(c)  Harnett  v.  Maitland,  15  Mee.  &  Wels.  257. 

(d)  Litt.  s.  68  ;  see  Graves  v.  Weld,  5  B.  &  Adol.  105  (E.  C.  L.  R.  vol.  27). 

(e)  Stat.  38  &  39  Vict.  c.  92,  amended  by  stat.  39  &  40  Vict.  c.  74,  post,  p.  390. 

(/)  Doe  d.  Bastow  v.  Cox,  11  Q.  B.  122  (E.  C.  L.  R.  vol.  63) ;  Doe  d.  Dixie  v.  Davies, 
7  Exch.  Rep.  89. 

0)  Right  d.  Flower  v.  Darby.  1  T.  Rep.  159,  163.         (h)  Ante,  p.  161. 

(i)  Earl  of  Pomfret  v.  Lord  Windsor,  2  Ves.  sen.  472,  481.  See  Melling  v.  Leak,  16 
C.  B.  652  (E.  C.  L.  R.  vol.  81). 


at  the  will  of  the  lessor,  the  law  implieth 
it  to  be  at  the  will  of  the  lessee  also."  Co. 
Litt.  55  a  ;  Moon  v.  Drizzle,  3  Devereux 
414.  A  tenancy  at  will  is  determined  by 
the  death  of  the  lessee  :  Cody  v.  Quarter- 
man,  12  Georgia  386,  or  by  any  act  incon- 
sistent with  the  duration  of  the  tenancy, 
as  by  an  assignment :  Co.  Litt.  55  b,  57  a  ; 
Cooper  v.  Adams,  6  Cushing  87  ;  or  any 
alienation  of  the  estate  of  the  landlord  : 
Kelly  v.  Waite,  12  Metcalf  300  ;  Howard  v. 
Morrison,  5  Cushing  563;  but  the  tenant 
cannot  so  determine  it  against  the  will  of 
the  landlord,  except  by  giving  notice  to  the 
latter  :  Carpenter  v.  Collins,  Yelverton  73  ; 
Pinhorn  v.  Souster,  8  Exchequer  763,  who, 
in  turn,  is  also  obliged  to  notify  the  tenant, 
which  may  be  done  either  by  express  no- 
tice, or  by  making  a  demand  of  the  prem- 
ises though  unaccompanied  by  express 
notice  :  Doe  d.  Roby  v.  Maisey,  8  Barn.  & 
Cress.  767  (E.  C.  L.  R.  vol.  15),  or  by  doing 


some  act  inconsistent  with  the  duration 
of  the  tenant's  interest,  as  by  making  a 
feoffment  with  livery  of  seisin  :  Ball  v. 
Cullimore,  2  Cromp.,  Mees.  &  Rose.  120; 
Doe  d.  Price  v.  Price,  9  Bing.  356  (E.  C.  L. 
R.  vol.  23),  by  entering  on  the  premises 
and  cutting  down  a  tree  :  Co.  Litt.  55  b  ; 
carrying  off  stone :  Doe  d.  Bennett  v. 
Turner,  8  Mees.  &  Wels.  226,  s.  c.  9  Id. 
643,  or  the  like.  R. 

1  See  the  cases  cited  in  note  to  p.  19  of 
Mr.  Morris's  edition  of  Smith's  Landlord 
and  Tenant.  But  the  legal  construction 
that  a  tenancy  for  an  indeterminate  period 
is  a  tenancy  from  year  to  year,  and  not  a 
tenancy  at  will,  will  yield  to  the  intention 
of  the  parties ;  and  when  it  is  seen  that 
that  intention  was  to  create  a  tenancy  at 
will,  it  will  be  so  considered,  notwith- 
standing the  reservation  of  an  annual  rent: 
Humphries  v.  Humphries,  3  Iredell  363 ; 
Stedman  v.  M'Intosh,  4  Id.  291.  R. 


OF    A   TERM    OF   YEARS. 


389 


in  possession,  is  still  a  tenant  at  will  at  law,  although  absolutely  entitled 
in  equity.     A  tenancy  by  sufferance  is  when  a  person,  who  has    r*390] 
♦originally  come  into  possession  by  a  lawful  title,  holds  such 
possession  after  his  title  has  determined.1 

A  lease  from  year  to  year  is  a  method  of  letting  very  commonly 
adopted :  in  most  cases  it  is  much  more  advantageous  to  both  landlord 
and  tenant  than  a  lease  at  will.  The  advantage  consists  in  this,  that 
both  landlord  and  tenant  are  entitled  to  notice  before  the  tenancy  can  be 
determined  by  the  other  of  them.  This  notice  must  be  given  at  least 
half  a  year  before  the  expiration  of  the  current  year  of  the  tenancy  ;{j) 
for  the  tenancy  cannot  be  determined  by  one  only  of  the  parties,  except 
at  the  end  of  any  number  of  whole  years  from  the  time  it  began.2     So 

(»  Right  d.  Flowers  v.  Darby,  1  T.  Rep.  159,  163  ;  and  see  Doe  d.  Lord  Bradford  v. 
Watkins,  7  East  551. 


1  And  this  is  the  lowest  kind  of  tenancy 
known  to  the  law.  It  cannot  be  conveyed, 
nor  be  enlarged  by  a  release.  R. 

2  Both  the  English  and  the  American 
law,  as  to  the  necessity  of  notice  and  the 
length  of  time  required,  are  thus  clearly 
stated  by  Mr.  Morris  in  the  note  to  page 
235  of  Smith's  Landlord  and  Tenant: 
"  There  are  some  peculiarities  about  the 
law  regarding  notices  to  quit,  as  held  in 
several  adjudged  cases,  both  in  this  coun- 
try and  in  England,  which  it  is  difficult  to 
assign  to  any  principle.  Thus  in  Doe  d. 
Robinson  v.  Dobell,  1  Q.  B.  806  (E.  C.  L. 
R.  vol.  41),  the  premises,  on  the  13th  of 
August,  1838,  were  let  '  for  one  year  and 
six  months  certain  from  the  date,'  and  it 
was  further  agreed  '  that  three  calendar 
months'  notice  shall  be  given  on  either 
side,  previous  to  the  determination  of  said 
tenancy.'  The  tenant  entered,  and  after 
holding  to  the  end  of  the  term,  held  over. 
On  May  7th,  1840,  the  lessor  of  the  plain- 
tiff gave  the  defendant  notice  to  quit  '  on 
or  before  the  13th  day  of  August  next,  or 
at  the  expiration  of  the  current  year  of 
your  tenancy,  which  shall  expire  next  after 
the  end  of  three  months,  from  and  after 
your  being  served  with  this  notice.'  The 
court  held  that  the  notice  was  right;  that 
the  three  months'  notice  must  be  calcu- 


lated with  reference  to  the  original  com- 
mencement of  the  tenancy,  and  not  with 
reference  to  the  expiration  of  the  term.    If 
a  tenancy  from  year  to  year  exist,  it   is 
held,  in  England,  that  six  months'  notice, 
expiring  with  the  end  of  the  year,  is  neces- 
sary to  terminate  the  tenancy  ;   and  that 
the  right  to  this  notice  is  mutual,  i.e.,  if 
the  landlord  wishes  to  terminate  the  ten- 
ancy, he  must  give  his  tenant  six  months' 
notice  :  Kingsbury  v.  Collins,  4  Bing.  202 
(E.  C.  L.  R.  vol.   13) ;   Izon  v.  Gorton,  5 
Bing.  N.  C.  501   (E.  C.  L.  R.  vol.  35).     If 
the  tenant  wishes  to  go,  he  must  give  the 
landlord  the  full  six  months'  notice  of  his 
intention  to  quit  :   Johnstone  v.  Huddle- 
stone,  4  Barnwell  &  Cress.  923  (E.  C.  L.  R. 
vol.  10)  ;  Bessell  v.  Landsberg,  7  Adol.  & 
Ellis  638  (E.  C.  L.  R.  vol.  34),   [and  the 
notice    may  be  given  as  well   during  the 
first  year  of  a  tenancy  from  year  to  year  as 
during  any  subsequent  year.     '  We  are  of 
opinion,'  said  Denman,  Ch.  J.,  in  Clark  v. 
Smaridge,  6  Q.  B.  957  (E.  C.  L.  R.  vol.  53), 
'that  the    tenancy  from  year  to  year,  so 
long  as  both  parties  please,  is  determina- 
ble at  the  end  of  any  year,  the  first  as  well 
as  any  subsequent  year,  unless  in  the  crea- 
tion of  the  tenancy  the  parties  used  expres- 
sions  showing  that  they  contemplated  a 
tenancy  of  two  years  at  the  least.     We  are 


390 


OF    PERSONAL    INTERESTS    IN    REAL    ESTATE. 


that,  if  the  tenant  enter  on  any  quarter  day,  he  can  quit  only  on  the  same 
quarter  day  :  when  once  in  possession,  he  has  a  right  to  remain  for  a 
year ;  and  if  no  notice  to  quit  be  given  for  half  a  year  after  he  has  had 


aware  that  this  decision  may  appear  at 
variance  with  an  impression  which  has 
prevailed  in  Westminister  Hall,  and  has, 
perhaps,  derived  some  countenance  from 
the  words  of  Lord  Tenterden  in  Bishop  v. 
Howard,  2  B.  &  C.  100  (E.  C.  L.  R.  vol.  9), 
though  they  were  perfectly  unnecessary 
for  that  decision.  But  the  authorities, 
when  examined,  certainly  do  not  warrant 
the  conclusion  that  has  been  drawn  from 
them,  for  the  reason  above  given  ;  and  it 
would  be  absurd  in  principle,  and  even  in- 
consistent with  the  contract,  to  hold  that 
the  tenancy  exists  from  year  to  year,  de- 
terminable by  half  a  year's  notice  by  either 
party,  and  yet  to  hold  that  neither  can 
give  such  notice  during  the  first  year.'  "  M.] 

"  The  American  cases  agree  as  regards 
the  necessity  of  notice  by  the  landlord  to 
determine  the  tenancy,  though  there  is  a 
difference  in  the  States  as  to  the  length  of 
notice  required,  and  in  some  States  it  is 
regulated  by  statute.  Six  months  is  the 
rule  in  Vermont,  New  Jersey,  and  Ken- 
tucky :  Hanchef  v.  Whitney,  1  Vermt.  315  ; 
Den  v.  Drake,  2  Green  523 ;  Den  v.  Blair, 
3  Green  181  ;  Moorhead  v.  Watkyns,  5  B. 
Monroe  228.  Three  months  is  all  that  is 
required  by  the  laws  of  Pennsylvania  and 
South  Carolina:  Hutchinson  v.  Potter,  1 
Jones  472  ;  Brown  v.  Vanhorn,  1  Binney 
334 ;  McCanna  v.  Johnson,  7  Harris  434  ; 
Godard  v.  Railroad  Co.,  2  Rich.  346.  The 
notice  must  be  given  three  months  before 
the  end  of  the  year.  The  tenancy  cannot 
be  determined  at  any  other  time.  If  the 
notice  is  not  so  given,  the  moment  another 
year  begins,  the  tenant  has  a  right  to  hold 
on  to  the  end  of  it." 

[With  regard  to  notice  by  the  tenant  the 
absence  of  cases  in  the  American  reports 
is  not  a  little  remarkable.  In  Cooke  v. 
Neilson,  Brightly's  Rep.  463,  two  judges  of 
the  District  Court  of  Philadelphia  held, 
against  the  strong  dissent  of  President 
Sharswood,  that  a  tenant  may  leave  at  the 
end  of  a  year  without  notice  to  his  land- 


lord. On  writ  of  error  to  the  Supreme 
Court  this  judgment  was  affirmed  by  a  di- 
vided court,  without  giving  any  opinion, 
10  Barr  41.  The  general  impression,  how- 
ever, appears  to  be  in  favor  of  the  English 
and  more  equitable  rule.  Thus  in  Hall  v. 
Wadsworth,  28  Vermt.  410,  a  tenant  went 
into  possession  Nov.  27,  1849,  at  an  annual 
rent  of  $150,  but  without  any  agreement 
as  to  the  length  of  the  tenancy  or  how  it 
should  terminate.  He  continued  in  occu- 
pation until  Nov.  10,  1852,  and  a  week  or 
two  before  that  time  sent  word  to  the 
landlord  that  he  was  about  leaving.  The 
landlord  replied  that  he  must  pay  rent 
until  April  1,  1853.  It  was  held  to  be  a 
tenancy  from  year  to  year,  and  the  land- 
lord entitled  to  recover  rent  until  April  1, 
1853  (all  he  claimed),  and  Bennett,  J.,  said 
the  right  to  notice  "  should,  at  least  to 
some  extent,  be  regarded  as  reciprocal." 
So  in  Currie  v.  Perley,  4  Foster  N.  H.  225, 
it  is  said  by  Bell,  J.,  that  the  rule  is  alike 
for  both  parties,  but  the  case  was  decided 
on  the  statutes  of  that  State.  And  in  New 
York,  where  the  tenant  died  and  his  exec- 
utors continued  in  possession  for  several 
years,  it  was  held  that  claims  for  rent  due 
in  tenant's  lifetime  and  after  his  death 
were  properly  joined  in  the  same  count, 
and  the  court  said  that  a  tenancy  from 
year  to  year  continues  until  legal  notice  of 
termination.  The  estate  does  not  depend 
on  a  continuance  of  possession,  and  the 
tenant  cannot  terminate  it  or  his  liability 
for  rent  without  legal  notice  :  Pugsley  v. 
Aikin,  1  Kernan  494;  Witt  v.  Mayor  of  N. 
Y.,  6  Robertson  447.     M.] 

"  Where  there  is  a  demise  for  a  fixed 
period  and  the  tenant  holds  over,  the  rule 
in  New  York  and  Pennsylvania  is  that  he 
is  either  a  trespasser  or  a  tenant  on  the 
terms  of  the  old  lease,  at  the  option  of  the 
landlord,  and  he  is  bound  for  a  year's  rent : 
Conway  v.  Starkweather,  1  Denio  113; 
Hemphill  v.  Flynn,  2  Barr  144.  And  when 
a  lease  is  for  one  year,  or  other  term  cer- 


OF   A    TERM    OF   YEARS.  390 

possession,  he  will  have  a  right  to  remain  two  whole  years  from  the 
time  he  came  in  ;  and  so  on  from  year  to  year.     But  where  the  tenancy 
is  within  the  Agricultural  Holdings  (England)  Act,  1875,  a  year's  notice, 
expiring  with  a  year  of  tenancy,  is  substituted  for  the  half  year's  notice 
formerly  required ;  but  this  is  not  to  extend  to  a  case  where  the  tenant 
is  adjudged  bankrupt  or  has  filed  a  petition  for  a  composition  or  arrange- 
ment with  his  creditors. (A;)     And  the  landlord's  notice  may,  with  a  view 
to  certain  improvements  to  be  stated  in  the  notice,  relate  to  part  only  of 
the  holding;  the  tenant  having  the  option,  by  counter  notice  in  writing, 
wTithin  twenty-eight  days,  to  accept  the  same  as  notice  to  quit  the  entire 
holding. (I)     This  act  does  not  apply  to  any  holding  which  is  not  either 
wholly  agricultural  or  wholly  pastoral  or  in  part  agricultual  and  as  to 
the  residue  pastoral,  or  that  is  of  less  extent  than  two  *acres.(m)    r+qq-i-i 
But  the  act  applies  to  every  such  contract  of  tenancy  beginning    L 
after  the  14th  of  February,  1876,  the  time  of  the  commencement  of  the 
act,(w.)  unless  in  any  case  the  landlord  and  tenant  agree  in  writing,  in 
the  contract  of  tenancy  or  otherwise,  that  the  act  or  any  part  or  provis- 
ion of  the  act  shall  not  apply  to  the  contract ;  and  in  that  case  the  act 
or  the  part  or  provision  thereof  to  which  that  agreement  refers  (as  the 
case  may  be)  shall  not  apply  to  the  contract. (o)     And  nothing  in  the 
act  is  to  prevent  a  landlord  and  tenant,  or  intending  landlord  and  tenant, 
from  entering  into  and  carrying  into  effect  any  such  agreement  as  they 
think  fit  or  shall  interfere  with  the  operation  thereof.(p)     The  act  does 
not  apply  to  any  contract  of  tenancy  current  at  the  commencement  of 
the  act,  except  in  the  case  of  a  tenancy  from  year  to  year,  or  at  will ; 
nor  does  it  apply  to  such  a  tenancy  in  case,  within  two  months  after  the 
commencement  of  the  act,  the  landlord  or  the  tenant  gave  notice  in 
writing  to  the  other  to  the  effect  that  he  (the  person  giving  the  notice) 
desired  that  the  existing  contract  of  tenancy  between  them  should  re- 
main unaffected  by  the  act.(^)     A  lease  from  year  to  year  can  be  made 
by  parol  or  word  of  mouth,(r)  if  the  rent  reserved  amount  to  two-thirds 

(k)  Stat.  38  &  39  Vict.  c.  92,  s.  51.  (I)  Sect.  52. 

(m)  Sect.  58.  (»)  Sect.  2. 

(o)  Sect.  56.  (p)  Sect.  54. 

(q)  Sect.  57. 

(r)  Legg  v.  Hackett,  Bac.  Abr.  tit.  Leases  (L.  3)  ;  s.  c.  nom.  Legg  v.  Strudwick,  2 
Salk.  414. 


tain,  a  notice  to  quit  is  not  necessary:  Jaquish,  21  Wend.  628  ;  Preble  v.  Hay,  32 

Den   v.   Adams,   7   Halst.   99;    Bedford  v.  Maine  456;   Walker  v.  Ellis,   12  111.  470; 

McElheron,  2  S.  &  R.  49 ;  Mosheir  v.  Red-  Pierson  v.  Turner,  2  Carter  123 ;  Lesley  v. 

ing,  3  Fair.  478  ;  Logan  v.  Herron,  8  S.  &  Randolph,  4  Rawle,  126."     Smith's  Land- 

R.  459  ;   Clapp  v.  Paine,  6  Shepley  264 ;  lord  and  Tenant,  Morris's  ed.  ubi  sup.  R. 
Dorrell  v.  Johnson,  17  Pick.  263;  Allen  v. 


391  OF   PERSONAL    INTERESTS   IN   REAL    ESTATE. 

at  least  of  the  full  improved  value  of  the  lands ;  for  if  the  rent  reserved 
do  not  amount  to  so  much,  the  Statute  of  Frauds  declares  that  such 
parol  lease  shall  have  the  force  and  effect  of  a  lease  at  will  only.(s)1  A 
lease  from  year  to  year,  reserving  a  less  amount  of  rent,  must  be  made 
by  deed.(i)  The  best  way  to  create  this  kind  of  tenancy  is  to  let  the 
lands  to  hold  "from  year  to  year"  simply,  *for  much  litigation 
WJ  has  arisen  from  the  use  of  more  circuitous  methods  of  saying  the 
same  thing. (u) 

A  lease  for  a  fixed  number  of  years  may,  by  the  Statute  of  Frauds, 
be  made  by  parol,  if  the  term  do  not  exceed  three  years  from  the  making 
thereof,  and  if  the  rent  reserved  amount  to  two-thirds,  at  least,  of  the 
full  improved  value  of  the  land.(:r)  Leases  for  a  longer  term  of  years, 
or  at  a  lower  rent,  were  required,  by  the  Statute  of  Frauds,(?/)  to  be  put 
into  writing  and  signed  by  the  parties  making  the  same  or  their  agents 
thereunto  lawfully  authorized  by  writing.  But  a  lease  of  a  separate  in- 
corporeal hereditament  was  always  required  to  be  made  by  deed. (z)  And 
the  act  to  amend  the  law  of  real  property  now  provides  that  a  lease, 
required  by  law  to  be  in  writing,  of  any  tenements  or  hereditaments 
shall  be  void  at  law,  unless  made  by  deed. (a)2    But  such  a  lease,  although 

(s)  29  Car.  II.  c.  3,  ss.  1,  2.  (t)  Stat.  8  &  9  Vict,  c.  106,  s.  3. 

(u)  See  Bac.  Abr.  tit.  Leases  and  Terms  for  Years  (L.  3) ;  Doe  d.  Clarke  v.  Smaridge, 
7  Q.  B.  957  (E.  C.  L.  R.  vol.  53). 

(x)  29  Car.  II.  c.  3,  s.  2  ;  Lord  Bolton  v.  Tomlin,  5  A.  &  E.  856  (E.  C.  L.  R.  vol.  31). 

(y)  29  Car.  II.  c.  3,  s.  1. 

(z)  Bird  v.  Higginson,  2  Adol.  &  Ell.  696  (E.  C.  L.  R.  vol.  29);  6  Adol.  &  Ell.  824 
(E.  C.  L.  R.  vol.  33) ;  s.  c.  4  Nev.  &  Man.  505  (E.  C.  L.  R.  vol.  30).     See  ante,  p.  239. 

(a)  Stat.  8  &  9  Vict.  c.  106,  s.  3,  repealing  stat.  7  &  8  Vict.  c.  76,  s.  4,  to  the  same 
effect. 

1  See  next  note.  demised."     These  sections  of  the  statute 

2  The  first  section  of  the  English  Statute  have,  it  is  believed,  been  adopted  with 
of  Frauds  declared  that  all  interests  in  lands  more  or  less  exactness  in  all  of  the  United 
made  or  created  by  livery  and  seisin  only,  States.  By  the  Massachusetts  statute,  all 
or  by  parol,  and  not  put  in  writing  and  parol  leases  (without  exception  as- to  dura- 
signed  by  the  parties,  or  their  agents  law-  tion)  have  the  effect  of  leases  at  will  only: 
fully  authorized  in  writing,  should  have  Ellis  v.  Paige,  1  Pick.  43 ;  Hingham  v. 
the  force  and  effect  of  leases  or  estates  at  Sprague,  15  Id.  102  ;  Hollis  v.  Paul,  3  Met- 
will  only;  "except  nevertheless,"  the  second  calf  551 ;  Kelly  v.  Waite,  12  Id.  300.  So 
section  goes  on  to  say,  "  all  leases,  not  ex-  in  Maine:  Little  v.  Pallister,  3  Greenleaf 
ceeding  the  term  of  three  years  from  the  15  ;  Davis  v.  Thompson,  13  Maine  214.  By 
making  thereof,  whereupon  the  rent  re-  the  New  York  Revised  Statutes  (2  Rev.  St. 
served  to  the  landlord  during  such  term  194),  no  estate  or  interest  in  land,  other 
shall  amount  unto  two  third  parts  at  least  than  leases  for  a  term  not  exceeding  one 
of  the   full  improved  value  of  the  thing  year,  can  be  created,  unless  by  operation 


OF   A   TEEM    OF   YEARS. 


392 


void  as  a  lease  for  want  of  its  being  by  deed,  may  be  god  a*  an  agre 
ment  to  grant  a  lease,  «f  res  magi*  vaUat  quam  pereat.{b)  It  does  not 
Tnire  any  formal  words  to  make  a  lease  for  years.  The  words  com- 
monW  employed  are  "demise,  lease,  and  to  farm  let;"  but  any  words 
bating ^intention  to  give  possession  of  the  lands  for  a  determmate 
time  will  be  sufficient.^)  *Accordingly,  it  sometimes  happened,  [tg93-| 
previously  to  the  act,  that  what  was  meant  by  the  part.es  merely 
aTIgreement  to  execute  a  lease,  was  in  law  construed  as  itself  an 
actual  lease  ■  and  very  many  law  suits  arose  out  of  the  questton,  whether 
2 off Tot  of  a  memorandum  was  in  law  an  actual  lease,  or  merely  an 
agreement  to  make  one.  Thus,  a  mere  memorandum  in  wnting  that  A. 
agreed  to  let,  and  B.  agreed  to  take,  a  house  or  farm  for  so  many  years, 

rr        0n    V    P   S    4  Jur   N   S.  183,  affirmed  2  De  Gex  &  Jones  559; 
{b)  Parker  v.  Taswell   V.-C   S        Ju .  N  ^      ^         q  ^  r  ^  ^  .  Tidy 

M   H-tttrc'  B   n's   298  (E   C   L   R.  vol.  Ill) ;  RollaBon  v.  Leon,  Exch.,  17  Jar. 
N  S  6ot;  ll'tlt  overling  the  case  of  Stratton  v.  Pettitt,  16  C.  B.  420  (E.  C. 

\!)  B°ac.  Ab,  tit.  Leases  and  Terms  for  Years  (K)  ;  Curling  v.  Mills,  6  Man.  ft  Gran. 
1 73  (E.  C.  L.  R.  vol.  46).  . 

tenancy   from   year   to   year,    Clayton   v. 
Blakley,   8   Term   3.     And   although    the 
parol  lease  for  more  than  three  years  is 
void  under  the  statute,  as  to  the  duration 
of  the  term,  yet  the  contract  will  regulate 
the  terms  of  the  holding  in  other  respects, 
as  for  instance,  the  amount  of  rent,  &c. 
De  Medina  v.  Poulson,  1  Holt  N.  P.  R.  47  ; 
Richardson  v.  Gifford,  1  Adol.  &  Ell.  52 
(E.  C.  L.  R.  vol.  28) ;   Beale  v.  Sanders,  5 
Scott  58 ;    Schuyler  v.  Leggett,  2  Cowen 
660  ;  Edwards  v.  Coleman,  4  Wendell  480  ; 
Prindle  v.  Anderson,  19  Id.  391  ;  Hollis  v. 
Paul,  3  Metcalf  350  ;  McDowell  v.  Simpson, 
3  Watts  135.     But  under  the  statute,  as 
expressed  in  Maine  and  Massachusetts,  as 
all    leases,    unless   they   be   written,   are 
leases  at  will  only,  it  has  there  been  held 
that  a  tenancy,  created  by  parol,  cannot, 
by  occupation   and  payment  of  rent,  be 
subsequently  enlarged  into  a  tenancy  from 
year  to  year :   Ellis  v.  Paige,  1  Pick.  43  ; 
Hingham  v.  Sprague,  15  Id.  102  ;   Kelly  v. 
Waite,  12   Id.  308;    Little  v.  Palhster,  3 
Greenleaf    15;     Davis    v.   Thompson,    13 
Maine  214. 


of  law  or  by  writing.  In  Connecticut 
(statute  of  1838)  such  leases  are  invalid, 
except  as  against  the  grantor.  The  Penn- 
sylvania statute  (1772)  is,  as  to  this, 
exactly  copied  from  that  of  29  Car.  II., 
omitting,  however,  the  part  as  to  the 
reservation  of  rent.  This  part,  however, 
it  will  be  perceived,  was  evidently  inserted 
in  the  English  statute  as  a  guard  against 
perjury,  in  supporting  a  parol  lease  for 
three  years  or  less. 

"The   effect,   then,   of    the   Statute   of 
Frauds,"  said  Bayley,  J.,  in  Edge  v.  Staf- 
ford, 1  Tyrwhitt  293,  "  so  far  as  it  applies 
to  parol  leases,  not  exceeding  three  years 
from  the  making,  is  this,  that  the  leases 
are  valid,  and  that  whatever  remedy  can 
be   had  upon  them  in  their  character  of 
leases  may  be  resorted  to  ;    but  they  do 
not  confer  the  right  to  sue  the  lessee  for 
damages  for  not  taking  possession."     Al- 
though the  statute  enacts  that  all  leases 
by  parol,  for  more  than  three  years,  shall 
have  the  effect  of  leases  at  will  only,  yet 
it  has   been  held,  on  both  sides  of  the 
Atlantic,  that  occupation  and  payment  of 
rent   under   such   a  lease   will   create   a 
23 


393 


OF    PERSONAL    INTERESTS   IN    REAL    ESTATE. 


at  such  a  rent,  was,  if  signed  by  the  parties,  as  much  a  lease  as  if  the 
most  formal  words  had  been  employed. (d)  By  such  a  memorandum  a 
term  of  years  was  created  in  the  premises,  and  was  vested  in  the  lessee, 
immediately  on  his  entry,  instead  of  the  lessee  acquiring,  as  at  present, 
merely  a  right  to  have  a  lease  granted  to  him  in  accordance  with  the 
agreement.(e) 


Q  *There  is  no  limit  to  the  number  of  years  for  which  a  lease 

L  L  J  may  be  granted ;  a  lease  may  be  made  for  99,  100,  1000,  or 
any  other  number  of  years;  the  only  requisite  on  this  point  is,  that 
there  be  a  definite  period  of  time  fixed  in  the  lease,  at  which  the  term 
granted  must  end;(/)  and  it  is  this  fixed  period  of  ending  which  dis- 

(d)  Poole  v.  Bentley,  12  East  168;  Doe  d.  Walker  v.  Groves,  15  East  244;  Doe  d. 
Pearson  v.  Ries,  8  Bing.  178  (E.  C.  L.  R.  vol.  21)  ;  s.  c.  1  Moo.  &  Scott  259;  Warman 
v.  Faithfull,  5  Barn.  &  Adol.  1042  (E.  C.  L.  R.  vol.  27) ;  Pearce  v.  Cheslyn,  4  Adol.  & 
Ellis  225  (E.  C.  L.  R.  vol.  31). 

(e)  By  the  Stamp  Act,  1870,  leases,  with  some  exceptions,  are  subject  to  an  ad  valorem 
duty  on  the  rent  reserved,  as  follows : — 


Where  the  yearly  rent  shall  not  ex- 
ceed £5 

Shall  exceed  £  5  and  not  exceed  £10 

"  10  "  15 

"  15  "  20 

"  20  "  25 

"  25  "  50 

"  50  "  75 

"  75  "  100 

And  where  the  same  shall  exceed  £100, 

then  for  every  £50,  and  also  for  any 

fractional  part  of  £50 


If  the  term 

does    not    ex- 

ceed 35  Years 

or  is  indefinite 

*. 

d. 

0 

6 

1 

0 

1 

6 

2 

0 

2 

6 

5 

0 

7 

6 

10 

0 

5 

0 

If  the  term 
being  definite 
exceeds  35 
Years  but  does 
not  exceed  100 
Years. 


3 

6 

9 

12 

15 

10 

5 

0 


1      10     0 


If  the  term 
being  definite 
exceeds  100 
Years. 


6 
12 
18 

4 
10 

0 
10 

0 


0     0 


And  any  premium  which  may  be  paid  for  the  lease  is  also  charged  with  the  same  ad 
valorem  duty  as  on  a  conveyance  upon  the  sale  of  lands  for  the  same  consideration. 
The  counterpart  bears  a  duty  of  five  shillings,  unless  the  duty  on  the  lease  is  less  than 
five  shillings,  in  which  case  the  counterpart  bears  the  same  duty  as  the  lease;  and  if 
not  executed  by  the  lessor,  it  does  not  require  any  stamp  denoting  that  the  proper  duty 
has  been  paid  on  the  original.  Agreements  for  leases  for  any  term  not  exceeding  thirty- 
five  years  are  subject  to  the  same  duty  as  leases.  Leases  of  furnished  houses  for  any 
term  less  than  a  year,  where  the  rent  for  such  term  exceeds  25Z.,  are  subject  to  a  duty 
of  half-a-crown.  And  any  lease  of  a  tenement  or  part  thereof  for  any  definite  term 
less  than  a  year,  at  a  rent  not  exceeding  the  rate  of  10£.  per  annum,  is  now  chargeable 
with  the  stamp  duty  of  one  penny  only.  Stat.  33  &  34  Vict.  c.  97.  Covenants  in  a 
lease  to  make  improvements  or  additions  to  the  property  do  not  subject  it  to  any  addi- 
tional duty.  Stat.  33  &  34  Vict.  c.  44 ;  33  &  34  Vict.  c.  97,  s.  98. 
(/)  Co.  Litt.  45  b ;  2  Black.  Com.  143. 


OF   A   TERM    OF   YEARS.  394 

tinguishes  a  term  from  an  estate  of  freehold.  Thus,  a  lease  to  A.  for  his 
life  is  a  conveyance  of  an  estate  of  freehold,  and  must  be  carried  into 
effect  by  the  proper  method  for  conveying  the  legal  seisin ;  but  a  lease 
to  A.  for  ninety-nine  years,  if  he  shall  so  long  live,  gives  him  only  a 
term  of  years,  on  account  of  the  absolute  certainty  of  the  determination 
of  the  interest  granted  at  a  given  time,  fixed  in  the  lease.  Besides  this 
fixed  time  for  the  term  to  end,  there  must  also  be  a  time  fixed  from 
■which  the  term  is  to  begin  ;  and  this  time  may,  if  the  parties  please,  be 
at  a  future  period. (g)  Thus,  a  lease  may  be  made  for  100  years  from 
next  Christmas.  For,  as  leases  anciently  were  contracts  between  the 
landlords  and  their  husbandmen,  and  had  nothing  to  do  with  the  free- 
hold or  feudal  possession, (h)  there  was  no  objection  to  the  tenant's  right 
of  occupation  being  deferred  to  a  future  time. 

*When  the  lease  is  made,  the  lessee  does  not  become  complete  r*ogr-i 
tenant  by  lease  to  the  lessor  until  he  has  entered  on  the  lands 
\et.(i)  Before  entry,  he  has  no  estate,  but  only  a  right  to  have  the  lands 
for  the  term  by  force  of  the  lease,(&)  called  in  law  an  interesse  termini. 
But  if  the  lease  should  be  made  by  a  bargain  and  sale,  or  any  other  con- 
veyance operating  by  virtue  of  the  Statute  of  Uses,  the  lessee  will,  as 
we  have  seen,(Z)  have  the  whole  term  vested  in  him  at  once,  in  the  same 
manner  as  if  he  had  actually  entered.1 

The  circumstance,  that  a  lease  for  years  was  anciently  nothing  more 
than  a  mere  contract,  explains  a  curious  point  of  law  relating  to  the 
creation  of  leases  for  years,  which  does  not  hold  with  respect  to  the 
creation  of  any  greater  interest  in  land.  If  a  man  should  by  indenture 
lease  lands,  in  which  he  has  no  legal  interest,  for  a  term  of  years,  both 
lessor  and  lessee  will  be  estojpjyed  during  the  term,  or  forbidden  to  deny 
the  validity  of  the  lease.  This  might  have  been  expected.  But  the 
law  goes  further,  and  holds  that  if  the  lessor  should  at  any  time  during 
the  lease  acquire  the  lands  he  has  so  let,  the  lease,  which  before  operated 
only  by  estoppel,  shall  now  take  effect  out  of  the  newly-acquired  estate 
of  the  lessor,  and  shall  become  for  all  purposes  a  regular  estate  for  a 

(ff)  2  Black.  Com.  143.  (h)  See  ante,  p.  9. 

(i)  Litt.  s.  58  ;  Co.  Litt.  46  b  ;  Miller  v.  Green,  8  Bingh.  92  (E.  C.  L.  R.  vol.  21)  ; 
ante,  p.  181. 

(k)  Litt.  s.  459  ;  Bac.  Abr.  tit.  Leases  and  Terms  for  Years  (M). 
(I)  Ante,  p.  185. 

1  See  as  to  this  the  note  to  p.  185,  supra. 


395         OF  PERSONAL  INTERESTS  IN  REAL  ESTATE. 

term  of  years.(Tw)1  If,  however,  the  lessor  has,  at  the  time  of  making 
the  lease,  any  interest  in  the  lands  he  lets,  such  interest  only  will  pass, 
and  the  lease  will  have  no  further  effect  by  way  of  estoppel,  though  the 
interest  purported  to  be  granted  be  really  greater  than  the  lessor  had  at 
r*3Qfi1  ^e  t'me  Power  to  grant.(w)  Thus,  if  A.,  a  lessee  *for  the  life 
J  of  B.,  makes  a  lease  for  years  by  indenture,  and  afterwards 
purchases  the  reversion  in  fee,  and  then  B.  dies,  A.  may  at  law  avoid 
his  own  lease,  though  several  of  the  years  expressed  in  the  lease  may 
be  still  to  come  ;  for,  as  A.  had  an  interest  in  the  lands  for  the  life  of 
B.,  a  term  of  years  determinable  on  B.'s  life  passed  to  the  lessee.  But 
if  in  such  a  case  the  lease  was  made  for  valuable  consideration,  equity 
would  oblige  the  lessor  to  make  good  the  term  out  of  the  interest  he  had 
acquired.  (0) 

The  first  kind  of  leases  for  years  to  which  we  have  adverted,  namely, 
those  taken  for  the  purpose  of  occupation,  are  usually  made  subject  to 
the  payment  of  a  yearly  rent,(j?)  and  to  the  observance  and  performance 
of  certain  covenants,  amongst  which  a  covenant  to  pay  the  rent  is  always 
included.  The  rent  and  covenants  are  thus  constantly  binding  on  the 
lessee,  during  the  whole  continuance  of  the  term,  notwithstanding  any 

(m)  Co.  Litt.  47  b  ;  Bac.  Abr.  tit.  Leases  and  Terms  for  Years  (0)  ;  2  Prest.  Abst. 
211 ;  Webb  v.  Austin,  7  Man.  &  Gran.  701  (E.  C.  L.  R.  vol  49). 

(n)  Co.  Litt.  47  b;  Hill  v.  Saunders,  4  Barn.  &  Cres.  529  (E.  C.  L.  R.  vol.  10)  ;  Doe 
d.  Strode  v.  Seaton,  2  Cro.,  Mee.  &  Rose.  728,  730. 

(0)  2  Prest.  Abst.  217. 

(p)  See  ante,  p.  244  et  seg. 

1  The  author  is  entirely  correct  when,  release  :   Right  d.  Jeffreys  v.  Bucknell,  2 

in    speaking  of  the   English   law  on   the  Barn.  &  Adolph.  378  (E.  C.  L.  R.  vol.  22)  ; 

subject  of  an  after-acquired  estate  passing  for  as  they  pass  no  more  than  the  actual 

to  the   lessee,  he  says,  that  the  doctrine  estate  of  the  party,  they  have  no  greater 

does  not  hold  with  respect  to  the  creation  effect  in  this  respect  than  the  common  law 

of  any  greater  interest  in  land.     Thus,  if  a  grant   or   release:    Kennedy   v.   Skeer,   3 

man  grant  a  rent  charge  out  of  the  manor  Watts  98.     On  this  side  of  the  Atlantic  it 

of  Dale,  and  in  truth  he  hath  nothing  in  has,    however,    been    held,    in    quite    a 

that  manor,  and  after  he  purchases   the  numerous  class  of  cases,  that  where  such 

same   manor,   yet   he   shall   hold   it   dis-  a  conveyance  contains  a  general  covenant 

charged  :  Perkins,  tit.  Grant,  §  65  ;  Wivil's  of  warranty,  an  after-acquired  estate  will 

Case,  Hobart  45 ;  Touchst.  240 ;  Lampet's  pass  by  estoppel  to  the  purchaser.     The 

Case,  10  Coke  48  ;    and  so  of  a  release :  student  will  find  these  cases  in  Mr.  Hare's 

Year  Book,  49  Edw.  III.  14 ;  Doe  d.  Lum-  note  to  Doe  v.  Oliver,  2  Smith's  Leading 

ley  v.  Scarborough,  3  Adolph.  &  Ellis   2  Cases  625  (723,  6th  Am.  ed.),  and  Rawle  on 

(E.  C.  L.  R.  vol.  30) ;  or  any  conveyance  Covenants  for   Title  410,  &c,  where   the 

taking  effect  by  virtue  of  the  Statute  of  reasoning  on  which  they  are  based  is  seri- 

Uses,  as  a  bargain  and  sale,  or  a  lease  and  ously  questioned.  R. 


OF   A   TERM   OP   YEARS.  396 

assignment  which  he  may  make.1  On  assigning  leasehold  premises,  the 
assignee  is  therefore  bound  to  enter  into  a  covenant  with  the  assignor,  to 
indemnify  him  against  the  payment  of  the  rent  reserved,  and  the  observ- 
ance and  performance  of  the  covenants  contained  in  the  lease.(^)  The 
assignee,  as  such,  is  liable  to  the  landlord  for  the  rent  which  may  be 
unpaid,  and  for  the  covenants  which  may  be  broken  during  the  time  that 
the  term  remains  vested  in  him,  although  he  may  never  enter  into  actual 
possession,(r)  provided  that  such  covenants  relate  to  the  premises  let ; 
and  a  covenant  to  do  any  act  upon  the  premises,  as  to  build  a  wall,  is 
binding  on  the  assignee,  if  the  lessee  has  covenanted  for  *him- 
self  and  his  assigns  to  do  the  act.(s)  But  a  covenant  to  do  any  L  °  J 
act  upon  premises  not  comprised  in  the  lease  cannot  be  made  to  bind  the 
assignee.(£)  Covenants  which  are  binding  on  the  assignee  are  said  to 
run  with  the  land,  the  burthen  of  such  covenants  passing  with  the  land 
to  every  one  to  whom  the  term  is  from  time  to  time  assigned.  But  when 
the  assignee  assigns  to  another,  his  liability  ceases  as  to  any  future 
breach. (u)  In  the  same  manner  the  benefit  of  covenants  relating  to  the 
land,  entered  into  by  the  lessor,  will  pass  to  the  assignee ;  for,  though 
no  contract  has  been  made  between  the  lessor  and  the  assignee  individu- 
ally, yet,  as  the  latter  has  become  the  tenant  of  the  former,  a  privity  of 
estate  is  said  to  arise  between  them,  by  virtue  of  which  the  covenants 
entered  into,  when  the  lease  was  granted,  become  mutually  binding,  and 
may  be  enforced  by  the  one  against  the  other.(a;)  This  mutual  right  is 
also  confirmed  by  an  expressed  clause  of  the  statute  before  referred  to,(?/) 
by  which  assignees  of  the  reversion  were  enabled  to  take  advantage  of 
conditions  of  re-entry  contained  in  leases. (z)  By  the  same  statute  also, 
the  assignee  of  the  reversion  is  enabled  to  take  advantage  of  the  cove- 
nants  entered  into  by  the  lessee  with  the  lessor,  under  whom  such  assignee 
claims,(a) — an  advantage,  however,  which,  in  some  cases,  he  is  said  to 
have  previously  possessed,  (b)2 

(q)  Sugd.  Vend.  &  Pur.  30,  13th  ed. 

(r)  Williams  v.  Bosanquet,  1  Brod.  &  Bing.  238  (E.  C.  L.  R.  vol.  5),  3  J.  B.  Moore  500. 
(s)  Spencer's  Case,  5  Rep.  16  a;  Hemingway  v.  Fernandes,  13  Sim.  228.     See  Min- 
shull  v.  Oakes,  2  H.  &  N.  793,  809. 

(t)  Keppel  v.  Bailey,  2  My.  &  Keene  517. 

(u)  Taylor  v.  Shum,  1  Bos.  &  Pul.  31  ;  Rowley  v.  Adams,  4  M.  &  Cr.  534. 

(x)  Sugd.  Vend.  &  Pur.  478,  note,  3d  ed. 

(y)  Stat.  32  Hen.  VIII.  c.  34,  s.  2.  (z)  Ante,  p.  246. 

(a)  1  Wms.  Saund.  240,  n.  (3) ;  Martyn  v.  Williams,  1  H.  &  N.  817. 

(b)  Vyvyan  v.  Arthur,  1  Barn.  &  Cres.  410,  414  (E.  C.  L.  R.  vol.  8). 

1  See  ante,  p.  124,  n.  respecting  covenants  running  with  the  land 

2  The   student  will  find  the  whole  law     elaborately  considered  in  Mr.  Hare's  note 


398  OF  PERSONAL  INTERESTS  IN  REAL  ESTATE. 

r  The  payment  of  the  rent,  and  the  observance  and  *perform- 

L  -■  ance  of  the  covenants,  are  usually  further  secured  by  a  proviso 
or  condition  for  re-entry,  which  enables  the  landlord  or  his  heirs  (and 
the  statute  above  mentioned(c)  enables  his  assigns),  on  non-payment  of 
the  rent,  or  on  non-observance  or  non-performance  of  the  covenants,  to 
re-enter  on  the  premises  let,  and  repossess  them  as  if  no  lease  had  been 
made.  The  proviso  for  re-entry,  so  far  as  it  relates  to  the  non-payment 
of  rent,  has  been  already  adverted  to.(d)  The  proviso  for  re-entry  on 
breach  of  covenants  was  until  recently  the  subject  of  a  curious  doctrine : 
that  if  an  express  license  were  once  given  by  the  landlord  for  the  breach 
of  any  covenant,  or  if  the  covenant  were,  not  to  do  a  certain  act  without 
license,  and  license  were  once  given  by  the  landlord  to  perform  the  act, 
the  right  of  re-entry  was  gone  forever.(e)  The  ground  of  this  doctrine 
was  that  every  condition  of  re-entry  is  entire  and  indivisible ;  and,  as 
the  condition  had  been  waived  once,  it  could  not  be  enforced  again.1  So 
far  as  this  reason  extended  to  the  breach  of  any  covenant,  it  was  cer- 
tainly intelligible ;  but  its  application  to  a  license  to  perform  an  act, 
which  was  only  prohibited  when  done  without  license,  was  not  very 
apparent.(/)  This  rule,  which  was  well  established,  was  frequently  the 
occasion  of  great  inconvenience  to  tenants  ;  for  no  landlord  could  venture 
to  give  a  license  to  do  any  act  which  might  be  prohibited  by  the  lease 
unless  done  with  license,  for  fear  of  losing  the  benefit  of  the  proviso  for 
re-entry,  in  case  of  any  future  breach  of  covenant.  The  only  method 
to  be  adopted  in  such  a  case  was  to  create  a  fresh  proviso  for  re-entry  on 
any  future  breach  of  the  covenants,  a  proceeding  which  was  of  course 
attended  with  expense.  The  term  would  then,  for  the  future,  have  been 
r*3Qcn  determinable  on  the  new  events  stated  in  the  proviso ;  and  there 
L  -*  was  no  objection  in  point  of  law  to  such  a  course ;  for  a  term, 
unlike  an  estate  of  freehold,  may  be  made  determinable,  during  its 
continuance,  on  events  which  were  not  contemplated  at  the  time  of  its 
creation.(^)  By  an  act  of  the  present  reign  the  inconvenient  doctrine 
above  mentioned  ceased  to  extend  to  licenses  granted  to  the  tenants  of 
crown  lands.(7i)    And  by  a  subsequent  statute(f)  it  has  been  provided  that 

(c)  Stat.  32  Hen.  VIII.  c.  34.  (d)  Ante,  p.  245. 

(e)  Dumpor's  Case,  4  Rep.  119  ;  Brummell  v.  Macpherson,  14  Ves.  173. 

(/)  4  Jarman's  Conveyancing,  by  Sweet,  377,  n.  (e). 

(g)  2  Prest.  Conv.  199.  (h)  Stat.  8  &  9  Vict.  c.  99,  s.  5. 

(i)  Stat.  22  &  23  Vict.  c.  35,  s.  1. 

to  Spencer's  Case,  1  Smith's  Leading  in  the  text  applies  equally  on  both  sides 
Cases.     It  may  be  here  only  necessary  to     of  the  Atlantic.  •  R. 

state  that  the  law  on  the  subject  as  stated        1  See  note  to  Dumpor's  Case,  1  Smith's 

Leading  Cases.  M. 


OF   A   TERM   OF   YEARS.  ouv 


\,  i^mflA  shall  unless  otherwise  expressed,  extend  only  to  the 

ln  tte  £TI  tXr  i;  "a  ;  Tot  Really  authored  by  the 
Sf  in" *  8  rtler  as  if  no  such  license  had  been  given  ;  and 
Edition  or  right  of  re-entr,  is  to  ~^e^jJ^t 

"T W  tot  one  g,prno'v  s  o°  Pha's  £71  made^)  that  a  license 
Line      seve™!!  "sees  or  with  respect  to  part  only  of  the  property  let 

reservation  is  legally  apportioned,  the  assignee  of  eac part ot e 

powers  had  been  reserved  to  him  as  incident  to  h,s  P?  .rf  ™*7££ 
?»  respect  of  the  apportioned  rent  or  other  reservat, on  a  lotted  orb . 
longing  to  him.  Before  this  enactment  a  grantee  of  part  of  the  r ever 
sion  could  not  take  advantage  of  the  condition;  as  ,f  .lease ,i* bee* 
made  of  three  acres,  reserving  a  rent  upon  conditton and  the  r  ve .10,. 
of  two  acres  were  granted,  the  rent  m.ght  be  apportioned,  but  toe  con 
dLon  was  dUroyed,  "for'that  it  is  entire  and  against  common  right.  (») 

The  above  enactments,  however,  failed  to  provide  for  the  case  of  an 

(l)  Sect.  3. 
^  cTlH,  215  a.     See  as  to  coparcener,  Doe  d.  De  Rat-  v.  Lewis,  5  A.  *  E. 
277  (E.  C.  L.  vol.  31). 

(„)  Co.  Litt.  211  b;  Price  v  W°7°°Y f53%   C  !'•  B.  vol.  51);  Doe  d.  Baker  v 
(o)  Doe  d.  Muston  v.  Gladwin,  6  Q.  B.  95d  (u.  Kj.  u.  n 


Jones,  5  Ex.  Rep.  498. 


400  OF    PERSONAL   INTERESTS    IN    REAL    ESTATE. 

destroy  the  condition  of  re-entry  ;{p)  but  an  actual  waiver  had  this 
effect.  Few  landlords  therefore  were  disposed  to  give  an  actual  waiver. 
The  inconvenience  which  thus  arose  is  now  met  by  a  subsequent  act,(<?) 
which  provides  that,  where  any  actual  waiver  of  the  benefit  of  any 
covenant  or  condition  in  any  lease  on  the  part  of  the  lessor,  or  his  heirs, 
executors,  administrators,  or  assigns,  shall  be  proved  to  have  taken 
place,  after  the  passing  of  that  act,(r)  in  any  one  particular  instance, 
r*401 1  suc^  actua,l  waiver  shall  not  be  assumed  *or  deemed  to  extend 
to  any  instance,  or  any  breach  of  covenant  or  condition,  other 
than  that  to  which  such  waiver  shall  specially  relate,  nor  to  be  a  general 
waiver  of  the  benefit  of  any  such  covenant  or  condition,  unless  an  inten- 
tion to  that  effect  shall  appear. 

A  condition  of  re-entry  is,  evidently,  a  very  serious  instrument  of  op- 
pression in  the  hands  of  the  landlord,  when  the  property  comprised  in 
the  lease  is  valuable,  and  the  tenant  by  mere  inadvertence  may  have 
committed  some  breach  of  covenant.  To  forget  to  pay  the  annual  pre- 
mium on  the  insurance  of  the  premises  against  fire  might  thus  occasion 
the  loss  of  the  whole  property ;  although,  on  the  other  hand,  the  land- 
lord might  well  consider  such  forgetfulness  inexcusable,  since  it  might 
end  in  the  loss  of  the  premises  by  fire  whilst  uninsured.  In  this  matter 
some  beneficial  provisions  have  been  made  by  recent  enactments.  The 
court  has  now  power  to  relieve,  upon  such  terms  as  it  may  think  fit, 
against  a  forfeiture  for  breach  of  a  covenant  or  condition  to  insure  against 
fire,  where  no  loss  or  damage  by  fire  has  happened,  and  the  breach  has, 
in  the  opinion  of  the  court,  been  committed  through  accident  or  mistake, 
or  otherwise  without  fraud  or  gross  negligence,  and  there  is  an  insurance 
on  foot  at  the  time  of  the  application  to  the  court  in  conformity  with 
the  covenant  to  insure.(s)  But  where  such  relief  shall  be  granted,  a  record 
or  minute  thereof  is  required  to  be  made  by  endorsement  on  the  lease  or 
otherwise.(tf)  And  the  court  is  not  to  relieve  the  same  person  more  than 
once  in  respect  of  the  same  covenant  or  condition  ;  nor  is  it  to  grant  any 
relief  where  a  forfeiture  under  the  covenant  in  respect  of  which  relief  is 
sought  shall  have  been  already  waived  out  of  court  in  favor  of  the  person 
l~*4021  see^mg  ^e  *relief.(w)  It  is  further  provided(:r)  that  the  per- 
sons entitled  to  the  benefit  of  a  covenant  on  the  part  of  a  lessee 

(p)  Doe  d.  Flower  v.  Peck,  1  B.  &  Adol.  428  (E.  C.  L.  R.  vol.  20). 
(q)  Stat.  23  &  24  Vict.  c.  38,  s.  6.  (r)  23d  July,  1860. 

(*)  Stats.  22  &  23  Vict.  c.  35,  s.  14 ;  23  &  24  Vict.  c.  126,  s.  2. 
(0  Stat.  22  &  23  Vict.  c.  35,  s.  5  ;  23  &  24  Vict.  c.  126,  s.  3. 
(u)  Stat.  22  &  23  Vict.  c.  35,  s.  6.  (x)  Sect.  7. 


40° 
OF   A   TERM   OF  TEARS. 


or  mortgagor  to  insure  against  loss  or  damage  by  fire  shall,  on  loss  or 
ormoitgago  .*     have  the  same  advantage  from  any  then 

damage  by  fire  happening  n  covenanted  to  be  insured 

subsisting  insurance  relatmg  to  the  building  eovena 
effected  by  the  lessee  or  mortgagor  in  respect  of  his  interest,  unaer 
eteori'the  property,  or  by  any  person  ^™^™'^Z 
effected  in  conformity  with  the  covenant,  as  he  would  have  from 
insurance  effected  in  conformity  with  the  covenant. 

It  was  provided  by  the  Statute  of  Frauds^)  that  no  *«*«£»£ 
interests/not  being  copyhold  or  eustomary  interests,  m ,  any  1  am Is  te „e 
ments,  or  hereditaments,  should  be  assigned,  unless  by  derf  o note  m 
writing,  signed  by  the  party  so  assigning,  er  his  agen    thereunto  taw 
fully  authorised  by  writing,  or  by  act  or  operatic,,  of  law      And jow 
ly  L  act  to  amend  the  law  of  real  property,!*)  it  »  enacted  tha   an 
assignment  of  a  chattel  interest,  not  being  copyhold,  in  any  tenements 
or  hereditaments,  shall  be  void  at  law  unless  made  by  deed.(a) 

A  very  beneficial  provision  for  purchasers  of  leaseholds  is  made by>e 
act  to  which  we  have  already  frequently  referred.^)     This  act  pr  vne 
that  where,  on  a  hmd  fide  purchase  after  the  passing^ o     he  act  o    a 
leasehold  interest  under  a  lease  containing  a  covenant  on  the  part  ot 
lessee  to  insure  against  fire,  *the  purchaser  is  furnished  with  a   L»403] 
written  receipt  of  the  person  entitled  to  receive  the  rent,  or  ms 
Igen    for   fie  last  payment  of  rent  accrued  due  before  the  completion  of 
2 e  puilse,  and  tire  is  subsisting  at  the  time  of  «h«-^* 
purchase  an  insurance  in  conformity  with  the  covenant  the  purely  or 
Ly  person  claiming  nnder  him  shall  not  be  subject o  any ^l.abi  ity  by 
way  of  forfeiture  or  damages,  or  otherwise,  in  respect  of  any  breach  o 
the'eovenant  committed  at  anytime  before  the completion of th    pm 
chase,  of  which  the  purchaser  had  not  notice  before  the  completion  ot 
the  purchase.(c) 

Leasehold  estates  may  also  be  bequeathed  by  will  As  leaseholds  are 
personal  property,  they  devolve  in  the  first  place  on  the  «~*»^ 
will,  in  the  same  manner  as  other  personal  property ;  or,  on  the  decease 

^  Any  assignment  of  a  .ease  npon  any  other  occasion  'thaa  a  sa.e  or  mortgage 
appears  now  to  be  subject  to  a  deed  stamp  of  10*.     Stat.  33  *  34  Vict,  c  97. 

(4)  Stat.  22  k  23  Viet.  c.  35,  passed  13th  Angnst,  1859,  ante,  pp.  399,  401. 

(c)  Stat.  22  &  23  Vict.  c.  35,  s.  8. 


403  OF  PERSONAL  INTERESTS  IN  REAL  ESTATE. 

of  their  owner  intestate,  they  will  pass  to  his  administrator.  An  expla- 
nation of  this  part  of  the  subject  will  be  found  in  the  author's  treatise  on 
the  principles  of  the  law  of  personal  property.(cZ )  It  was  formerly  a  rule 
that  where  a  man  had  lands  in  fee  simple,  and  also  lands  held  for  a  term 
of  years,  and  devised  by  his  will  all  his  lands  and  tenements,  the  fee 
simple  lands  only  passed  by  the  will,  and  not  the  leaseholds  ;  but  if  he 
had  leasehold  lands,  and  none  held  in  fee  simple,  the  leaseholds  would 
then  pass,  for  otherwise  the  will  would  be  merely  void.(e)  But  the  act 
for  the  amendment  of  the  laws  with  respect  to  wills(/)  now  provides 
that  a  devise  of  the  land  of  the  testator,  or  of  the  land  of  the  testator  in 
any  place  or  in  the  occupation  of  any  person  mentioned  in  his  will,  or 
v*A(\a~\  °^nerwise  described  in  *a  general  manner,  and  any  other  general 
J  devise  which  would  describe  a  leasehold  estate  if  the  testator 
had  no  freehold  estate  which  could  be  described  by  it,  shall  be  construed 
to  include  the  leasehold  estates  of  the  testator,  or  his  leasehold  estates 
to  which  such  description  shall  extend,  as  well  as  freehold  estates,  unless 
a  contrary  intention  shall  appear  by  the  will.  The  act  to  which  we 
have  already  referred^ g)  contains  a  provision  for  the  exoneration  of 
the  executors  or  administrators  of  a  lessee  from  liability  to  the  rents  and 
covenants  of  the  lease,  similar  to  that  to  which  we  have  already  referred 
with  respect  to  their  liability  to  rents-charge  in  conveyances  on  rents- 
charge.  (7i) 

Leasehold  estates  are  also  subject  to  involuntary  alienation  for  the 
payment  of  debts.  By  the  act  for  extending  the  remedies  of  creditors 
against  the  property  of  their  debtors,  they  became  subject,  in  the  same 
manner  as  freeholds,  to  the  claims  of  judgment  creditors:^')  with  this 
exception,  that,  as  against  purchasers  without  notice  of  any  judgments, 
such  judgments  had  no  further  effect  than  they  would  have  had  under 
the  old  law.(&)  And,  under  the  old  law,  leasehold  estates,  being  goods 
or  chattels  merely,  were  not  bound  by  judgments  until  a  writ  of  execu- 
tion was  actually  in  the  hands  of  the  sheriff  or  his  officer. (I)     So  that  a 

(d )  Part  IV.  Chaps.  III.  &  IV.  (e)  Rose  v.  Bartlett,  Cro.  Car.  292. 

(/)  Stat.  7  Will.  IV.  &  1  Vict.  c.  26,  s.  26.  See  Wilson  v.  Eden,  5  Exch.  752  ;  18 
Q.  B.  474  (E.  C.  L.  R.  vol.  3)  ;  16  Beav.  153  ;  Prescott  v.  Barker,  L.  R.  9  Ch.  174. 

{(j)  Stat.  22  &  23  Vict.  c.  35,  s.  27. 

(h)  Ante,  p.  338;  Re  Green,  2  De  Gex,  F.  &  J.  121. 

(t)  Stat.  1  &  2  Vict.  c.  110;  ante,  p.  86. 

(k)  Stat.  2  &  3  Vict.  c.  11,  s.  5 ;  Westbrook  v.  Blythe,  Q.  B.,  1  Jurist,  N.  S.  85,  3  E. 
&  B.  737  (E.  C.  L.  R.  vol.  77). 

(1)  Stat.  29  Car.  II.  c.  3,  s.  16.  See  Principles  of  the  Law  of  Personal  Property,  p. 
46,  1st  ed. ;  47,  2d  ed. ;  48,  3d,  4th,  and  5th  eds.  ;  50,  6th  ed.  ;  51,  7th  ed.  ;  54,  8th  ed. ; 
56,  9th  ed. 


OF   A   TERM    OF   YEARS.  404 

judgment  had  no  effect  as  against  a  purchaser  of  a  leasehold  estate  with- 
out notice,  unless  a  writ  of  execution  on  such  judgment  had  actually- 
issued  prior  to  the  purchase.  And  if  leaseholds  should  be  considered  to 
be  "  goods"  within  *the  meaning  of  the  Mercantile  Law  Amend-  r*^-* 
ment  Act,  1856,(W)  then  a  purchaser  without  notice  was  safe 
at  any  time  before  an  actual  seizure  under  the  writ.  And  now,  as  we 
have  seen,  no  judgment  of  a  date  later  than  the  29th  of  July,  1864,  can 
affect  any  land  of  whatever  tenure,  until  such  land  shall  have  been 
actually  delivered  in  execution  by  virtue  of  a  writ  of  elegit  or  other 
lawful  authority  in  pursuance  of  such  judgment. (n) 

In  the  event  of  bankruptcy,  leasehold  property  may  now  be  disclaimed 
by  the  trustee  for  the  creditors,  with  the  leave  of  the  court,  notwith- 
standing he  has  endeavored  to  sell,  or  has  taken  possession  of,  such  prop- 
erty, or  exercised  any  act  of  ownership  in  relation  thereto ;  and  the  lease 
shall  be  deemed  to  have  been  surrendered  on  the  same  date.(o)  But  the 
trustee  shall  not  be  entitled  to  disclaim  any  property  in  pursuance  of  the 
act  in  cases  where  an  application  in  writing  has  been  made  to  him  by 
any  person  interested  in  such  property  requiring  such  trustee  to  decide 
whether  he  will  disclaim  or  not,  and  the  trustee  has,  for  a  period  of  not 
less  than  twenty-eight  days  after  the  receipt  of  such  application,  or  such 
further  time  as  may  be  allowed  by  the  court,  declined  or  neglected  to 
give  notice  whether  he  disclaims  the  same  or  not.(p) 

The  tenant  for  a  term  of  years  may,  unless  restrained  by  express  cove- 
nant, make  an  underlease  for  any  part  of  his  term ;  and  any  assignment 
for  less  than  the  whole  term  is  in  effect  an  underlease. (q)  On  the  other 
*hand,  any  assurance  purporting  to  be  an  underlease,  but  which  r^gn 
comprises  the  whole  term,  is,  by  the  better  opinion,  in  effect  an 
assignment.(r)  It  is  true  that  in  some  cases,  where  a  tenant  for  years, 
having  less  than  three  years  of  his  term  to  run,  has  verbally  agreed 
with  another  person  to  transfer  the  occupation  of  the  premises  to  him 

(m)  Stat.  19  &  20  Vict.  c.  97,  s.  1. 

(n)  Stat.  27  &  28  Vict.  c.  112  ;  ante,  p.  88. 

(o)  Stat.  32  &  33  Vict.  c.  71,  s.  23.  General  Rules  in  Bankruptcy,  1871,  rule  28. 
See  Smythe  v.  North,  20  W.  R.  683,  L.  R.  7  Ex.  242. 

(p)  Sect.  24. 

(q)  See  Sugd.  Concise  Vendors  482 ;  Cottee  v.  Richardson,  7  Ex.  Rep.  143. 

(r)  Palmer  v.  Edwards,  1  Doug.  187,  n. ;  Parmenter  v.  Webber,  8  Taunt.  593  (E.  C. 
L.  R.  vol.  4) ;  2  Prest.  Conv.  124  ;  Thorn  v.  Woollcombe,  3  B.  &  Adol.  586  (E.  C.  L.  R. 
vol.  23) ;  Langford  v.  Selmes,  3  K.  &  J.  220,  227  ;  Beaumont  v.  Marquis  of  Salisbury, 
19  Beav.  198,  210 ;  Beardmore  v.  Wilson,  L.  R.  4  C.  P.  57. 


406  OF   PERSONAL   INTERESTS   IN   REAL   ESTATE. 

for  the  rest  of  the  term,  he  paying  an  equivalent  rent,  this  has  been  re- 
garded as  an  underlease,  and  so  valid,(s)  rather  than  as  an  attempted 
assignment  which  would  be  void,  formerly  for  want  of  a  writing,^)  and 
now  for  want  of  a  deed.(w)  It  is,  however,  held  that  no  distress  can  be 
made  for  the  rent  thus  reserved. (a:)  But  if  a  tenure  be  created,  the  lord, 
if  he  have  no  estate,  must  at  least  have  a  seignory,Q/)  to  which  the  rent 
would  by  law  be  incident ;  and  being  thus  rent  service,  it  must  by  the 
common  law  be  enforceable  by  distress. (3)  The  very  fact,  therefore,  that 
no  distress  can  be  made  for  the  rent  by  the  common  law,  shows  that 
there  can  be  no  tenure  between  the  parties.  And,  if  so,  the  attempted 
disposition  cannot  operate  as  an  underlease.(a)  If,  however,  the  dispo- 
sition be  by  deed,  and  be  executed  by  the  alienee,  it  has  been  decided 
that  the  reservation  of  rent  may  operate  to  create  a  rent-charge,(6)  for 
r*4071  w^^cn  tne  owner  may  sue,(c)  and  which  he  may  assign  so  as  *to 
entitle  the  assignee  to  sue  in  his  own  name.(d)  And  if  this  be 
so,  there  seems  no  good  reason  why,  under  these  circumstances,  the  stat- 
utory power  of  distress  given  to  the  owner  of  a  rent  seck(e)  should 
not  apply  to  the  rent  thus  created.(/)  But  on  this  point  also  opinions 
differ.(^) 

Every  underlessee  becomes  tenant  to  the  lessee  who  grants  the  under- 
lease, and  not  tenant  to  the  original  lessor.  Between  him  and  the 
underlessee,  no  privity  is  said  to  exist.  Thus  the  original  lessor  cannot 
maintain  any  action  against  an  underlessee  for  any  breach  of  the  cove- 
nants contained  in  the  original  lease. (A)     His  remedy  is  only  against  the 

(s)  Poultney  v.  Holmes,  1  Strange  405;  Preece  v.  Corrie,  5  Bing.  27  (E.  C.  L.  R.  vol. 
15) ;  Pollock  v.  Stacy,  9  Q.  B.  1033  (E.  0.  L.  R.  vol.  58). 

\t)  Stat.  29  Car.  II.  c.  3,  s.  3 ;  ante,  p.  402. 

(u)  Stat.  8  &  9  Vict.  c.  106,  s.  3 ;  ante,  p.  402. 

(z)  Bac.  Abr.  tit.  Distress  (A) ;  v.  Cooper,  2  Wilson  375  ;  Preece  v.  Corrie,  5 

Bing.  24  (E.  C.  L.  R.  vol.  15)  ;  Pascoe  v.  Pascoe,  3  Bing.  N.  C.  898  (E.  C.  L.  R. 
vol.  32). 

{y)  Ante,  p.  329.  (z)  Litt.  sect.  213. 

(a)  Barrett  v.  Rolph,  14  M.  &  W.  348,  352. 

(b)  Ante,  p.  330. 

(c)  Baker  v.  Gostling,  1  Bing.  N.  C.  19  (E.  C.  L.  R.  vol.  27). 

(d)  Williams  v.  Hayward,  Q.  B.,  5  Jur.  N.  S.  1417,  1  Ellis  &  Ellis  1040  (E.  C.  L  R. 
vol.  102). 

(?)  Stat.  4  Geo.  II.  c.  28,  s.  5  ;  ante,  p.  333. 

(/)  Pascoe  v.  Pascoe,  3  Bing.  N.  C.  905  (E.  C.  L.  R.  vol  32). 

(ff)  See v.  Cooper,  2  Wils.  375  ;  Langford  v.  Selmes,  3  K.  &  J.  220  ;  Smith  v. 

Watts,  4  Drew.  338  ;  Wills  v.  Cattling,  Q.  B.,  7  W.  R.  448  ;  Burton's  Compendium, 
pi.  1111. 

(h)  Holford  v.  Hatch,  1  Dougl.  183. 


OF   A   TERM   OF   YEARS.  407 


lessee  or  any  assignee  from  him  of  the  whole  term.  The  derivative 
term  which  is  vested  in  the  underlessee,  is  not  an  estate  in  the  interest 
originally  granted  to  the  lessee:  it  is  a  new  and  distinct  term,  for  a 
different;  because  a  less,  period  of  time.  It  certainly  arises  and  takes 
effect  out  of  the  original  term,  and  its  existence  depends  on  the  con- 
tinuance of  such  term,  but  still,  when  created,  it  is  a  distinct  chattel  in 
the  same  way  as  a  portion  of  any  movable  piece  of  goods  becomes,  when 
cut  out  of  it,  a  separate  chattel  personal. 

If  a  married  woman  should  be  possessed  of  a  term  of  years,  her 
husband  may  dispose  of  it  at  any  time  during  the  coverture,  either  abso- 
lutely or  by  way  of  mortgage  ;(*)  and  in  case  he  should  survive  her,  he 
*will  be  entitled  to  it  by  his  marital  right.(A)  But  if  he  should  ^m^ 
die  in  her  lifetime  it  will  survive  to  her,  and  his  will  alone  will 
not  be  sufficient  to  deprive  her  of  it.(Z)1  And  now  by  the  Married 
Women's  Property  Act,  1870,  where  any  woman  married  after  the  «tn 
of  August,  1870,  the  date  of  the  act,  shall  during  her  marriage  become 
entitled  to  any  personal  property  (which  would  seem  to  include  lease- 
holds) as  next  of  kin  or  one  of  the  next  of  kin  of  an  intestate,  such 
property  shall,  subject  and  without  prejudice  to  the  trusts  of  any  settle- 
ment affecting  the  same,  belong  to  the  woman  for  her  separate  use.(m) 

In  many  cases  landlords,  particularly  corporations,  are  in  the  habit  of 
granting  to  their  tenants  fresh  leases,  either  before  or  on  the  expiration 
of  existing  ones.  In  other  cases  a  covenant  is  inserted  to  renew  the 
lease  on  payment  of  a  certain  fine  for  renewal;  and  this  covenant  may 
be  so  worded  as  to  confer  on  the  lessee  a  perpetual  right  of  renewal  from 
time  to  time  as  each  successive  lease  expires.(n)     In  all  these  cases  the 

(i)  Hill  v.  Edmonds,  5  De  Gex  &  S.  603,  607. 

(k)  Co.  Litt.  46  b,  351  a. 

\l  2  Black.  Com.  434 ;  1  Rop.  Husb.  and  Wife  173,  177  ;  Doe  d.  Shaw  v.  Steward  1 
Ad  &  Ell  300  (E.  C.  L.  R.  vol.  28) ;  as  to  trust  term,  Donne  v.  Hart,  2  Russ.  &  Mylne 
M0;  «e  also  Hanson  v.  Keating,  4  Hare  1  ;  Duberly  v.  Day,  Rolls,  16  Jurist  581  ;  s.  c. 

16  Beav.  33. 

(m)  Stat.  33  &  34  Vict.  c.  93,  s.  7. 

(n)  Iggulden  v.  May,  9  Ves.  325  ;  7  East  237  ;  Hare  v.  Burges,  4  Kay  &  J.  45. 

x  A' lease   made   to   a   married  woman  ture,  the  law,  as  stated  in  the  text,  will 

during  her  coverture  may  be  either  af-  not,  of  course,  apply  in  those   States  in 

finiel  or   disaffirmed   by   her   upon   the  which  the  property  of  married  women  is 

deTth  o?  her  husband,  Co.  Litt.  3  a.     As  by  statute  secured  to  them.     See  onto,  p. 

to   terms   of  years   of  which   a   married  223. 
woman  may  be  possessed  before  cover- 


408  OF    PERSONAL    INTERESTS   IN    REAL    ESTATE. 

acceptance  by  the  tenant  of  the  new  lease  operates  as  a  surrender  in  law 
of  the  unexpired  residue  of  the  old  term  ;  for  the  tenant  by  accepting 
the  new  lease  affirms  that  his  lessor  has  power  to  grant  it ;  and  as  the 
lessor  could  not  do  this  during  the  continuance  of  the  old  term,  the 
acceptance  of  such  new  lease  is  a  surrender  in  law  of  the  former.  But 
if  the  new  lease  be  void,  the  surrender  of  the  old  one  will  be  void  also ; 
r*4oqn    anc^  ^  ^e  new  ^ease  De  voidable,  the  surrender  will  be  *void  if 

the  new  fail.(o)  It  appears  to  be  now  settled,  after  much  differ- 
ence of  opinion,  that  the  granting  of  a  new  lease  to  another  person  with 
the  consent  of  the  tenant  is  an  implied  surrender  of  the  old  term.(p) 
Whenever  a  lease,  renewable  either  by  favor  or  of  right,  is  settled  in 
trust  for  one  person  for  life  with  remainders  over,  or  in  any  other 
manner,  the  benefit  of  the  expectation  or  right  of  renewal  belongs  to 
the  persons  from  time  to  time  beneficially  interested  in  the  lease  ;  and  if 
any  other  person  should,  on  the  strength  of  the  old  lease,  obtain  a  new 
one,  he  will  be  regarded  in  equity  as  a  trustee  for  the  person  beneficially 
interested  in  the  old  one.(q)  So  the  costs  of  renewal  are  apportioned 
between  the  tenant  for  life  and  the  remainder-men  according  to  their 
respective  periods  of  actual  enjoyment  of  the  new  lease.(r)  Special 
provisions  have  been  made  by  parliament  for  facilitating  the  procuring 
and  granting  of  renewals  of  leases  when  any  of  the  parties  are  infants, 
idiots,  or  lunatics. (s)  And  the  provision  by  which  the  remedies  against 
under-tenants  have  been  preserved,  when  leases  are  surrendered  in  order 
to  be  renewed,  has  been  already  mentioned. (£)  More  recently  provisions 
r*4101    nave  *Deen  made  by  parliament  enabling  trustees  of  renewable 

leaseholds  to  renew  their  leases,(&)  and  to  raise  money  by  mort- 
gage for  that  purpose. (a;)     Provisions  have  also  been  made  for  facilitat- 

(o)  Ive's  Case,  5  Rep.  lib;  Roe  d.  Earl  of  Berkeley  v.  Archbishop  of  York,  6  East 
86  ;  Doe  d.  Earl  of  Egremont  v.  Courtenay,  11  Q.  B.  702  (E.  C.  L.  R.  vol.  63)  ;  Doe  d. 
Biddulph  v.  Poole,  11  Q.  B.  713  (E.  C.  L.  R.  vol.  63). 

(p)  See  Lyon  v.  Reed,  13  Mee.  &  Wels.  285,  306  ;  Creagh  v.  Blood,  3  Jones  &  Lat. 
133,  160;  Nickells  v.  Atherstone,  10  Q.  B.  944  (E.  C.  L.  R.  vol.  59) ;  M'Donnell  v.  Pope, 
9  Hare  705 ;  Davison  v.  Gent,  1  H-  &  N.  744. 

(g)  Rawe  v.  Chichester,  Ambl.  715;  Giddings  v.  Giddings,  3  Russ.  241;  Tanner  v. 
Elworthy,  4  Beav.  487  ;  Clegg  v.  Fishwick,  1  Mac.  &  Gord.  294. 

(r)  White  v.  White,  5  Ves.  554  ;  9  Ves.  560 ;  Allan  v.  Backhouse,  2  Ves.  &  Bea.  65  ; 
Jacob  631 ;  Greenwood  v.  Evans,  4  Bea.  44;  Jones  v.  Jones,  5  Hare  440  ;  Hadleston  v. 
Whelpdale,  9  Hare  775;  Ainslie  v.  Harcourt,  28  Beav.  313;  Bradford  v.  Brownjohn,  L. 
R.  3  Ch.  711. 

(V)  Stats.  11  Geo.  IV.  &  1  Will.  IV.  c.  65,  ss.  12,  14-18,  20,  21  ;  16  &  17  Vict.  c.  70, 
ss.  113-115,  1331-35. 

(t)  Stat.  4  Geo.  II.  c.  28,  s.  6  ;  ante,  p.  249.  (u)  Stat.  23  &  24  Vict.  c.  145,  s.  8. 

(x)  Sect.  9.  These  provisions  apply  only  to  instruments  executed  after  the  passing 
of  the  act  (sect.  34).     The  act  passed  28th  August,  1860. 


OF   A   TERM    OF   YEARS.  410 

ing  the  purchase  by  such  trustees  of  the  reversion  of  the  lands,  when  it 
belongs  to  an  ecclesiastical  corporation,  and  for  raising  money  for  that 
purpose  by  sale  or  mortgage  ;{y)  also  for  the  exchange  of  part  of  the 
lands,  comprised  in  any  renewable  lease,  for  the  reversion  in  other  part 
of  the  same  lands,  so  as  thus  to  acquire  the  entire  fee  simple  in  a  part 
of  the  lands  instead  of  a  renewable  lease  of  the  whole.(2) 

The  Agricultural  Holdings  (England)  Act,  1875,(a)  contains  provis- 
ions for  the  compensation  of  tenants,  whose  tenancies  are  within  the 
act,  for  improvements  made  by  them.  The  improvements  are  divided 
into  three  classes,(5)  which  are  to  be  considered  as  exhausted  as  to  the 
first  class  at  the  end  of  twenty  years ;  as  to  the  second  class,  at  the  end 
of  seven  years ;  and  as  to  the  third  class,  at  the  end  of  two  years. (c) 
A  landlord,  on  paying  to  the  tenant  the  amount  of  compensation  due  to 
him  under  the  act,  may  obtain  an  order  from  the  County  Court  charging 
the  holding  with  the  repayment  of  the  amount  paid,  or  any  part  thereof, 
with  such  interest,  and  by  such  installments,  and  with  such  directions  for 
giving  effect  to  the  charge,  as  the  court  thinks  fit.  But  where  the  land- 
lord is  not  absolute  owner,  no  installment  or  interest  is  to  be  made  pay- 
able after  the  time  when  the  improvement  in  respect  whereof  compensa- 
tion is  made  will  for  the  purposes  of  the  act  be  taken  to  be  p^,-.-.-. 
*exhausted.(d)  There  is  also  a  provision  for  the  removal  of  *-  -* 
tenant's  fixtures,  subject  to  the  landlord's  option  to  purchase  the  same.(e) 

We  now  come  to  consider  those  long  terms  of  years  of  which  frequent 
use  is  made  in  conveyancing,  generally  for  the  purpose  of  securing  the 
payment  of  money.  For  this  purpose,  it  is  obviously  desirable  that  the 
person  who  is  to  receive  the  money  should  have  as  much  power  as  pos- 
sible of  realizing  his  security,  whether  by  receipt  of  the  rents  or  by  sell- 
ing or  pledging  the  land;  at  the  same  time  it  is  also  desirable  that  the 
ownership  of  the  land,  subject  to  the  payment  of  the  money,  should  re- 
main as  much  as  possible  in  the  same  state  as  before,  and  that  when  the 
money  is  paid,  the  persons  to  whom  it  was  due  should  no  longer  have 
anything  to  do  with  the  property.  These  desirable  objects  are  accom- 
plished by  conveyancers  by  means  of  the  creation  of  a  long  term  of  years, 
say  1000,  which  is  vested  (when  the  parties  to  be  paid  are  numerous,  or 
other  circumstances  make  such  a  course  desirable)  in  trustees,  upon  trust 

(y)  Stat.  23  &  24  Vict.  c.  124,  ss.  35-38.  (z)  Sect.  39. 

(a)  Stat.  38  &  39  Vict.  c.  92,  amended  by  stat.  39  &  40  Vict.  c.  74,  ante,  p.  390. 

(b)  Sect.  5.  (c)  Sect.  6. 
(d)  Sect.  42.                                                                    (e)  Sect.  53. 


411  OF   PERSONAL   INTERESTS   IN   REAL   ESTATE. 

out  of  the  rents  and  profits  of  the  premises,  or  by  sale  or  mortgage  thereof 
for  the  whole  or  any  part  of  the  term,  to  raise  and  pay  the  money  re- 
quired, as  it  may  become  due,  and  upon  trust  to  permit  the  owners  of 
the  land  to  receive  the  residue  of  the  rents  and  profits.  By  this  means 
the  parties  to  be  paid  have  ample  security  for  the  payment  of  their 
money.  Not  only  have  their  trustees  the  right  to  receive  on  their  behalf 
(if  they  think  fit)  the  whole  accruing  income  of  the  property,  but  they 
have  also  power  at  once  to  dispose  of  it  for  1000  years  to  come,  a  power 
which  is  evidently  almost  as  effectual  as  if  they  were  enabled  to  sell  the 
fee  simple.  Until  the  time  of  payment  comes,  the  owner  of  the  land  is 
r  91  entitled,  on  the  other  hand,  to  receive  the  rents  and  *profits,  by 
L  -•  virtue  of  the  trust  under  which  the  trustees  may  be  compelled  to 
permit  him  so  to  do.  So,  if  part  of  the  rents  should  be  required,  the 
residue  must  be  paid  over  to  the  owner ;  but  if  non-payment  by  the  owner 
should  render  a  sale  necessary,  the  trustees  will  be  able  to  assign  the 
property,  or  any  part  of  it,  to  any  purchaser  for  1000  years  without  any 
rent.  But  until  these  measures  may  be  enforced,  the  ownership  of  the 
land,  subject  to  the  payment  of  the  money,  remains  in  the  same  state  as 
before.  The  trustees,  to  whom  the  term  has  been  granted,  have  only  a 
chattel  interest ;  the  legal  seisin  of  the  freehold  remains  with  the  owner, 
and  may  be  conveyed  by  him,  or  devised  by  his  will,  or  will  descend  to 
his  heir,  in  the  same  manner  as  if  no  term  existed,  the  term  all  the  while 
still  hanging  over  the  whole,  ready  to  deprive  the  owners  of  all  substantial 
enjoyment  if  the  money  should  not  be  paid. 

If,  however,  the  money  should  be  paid,  or  should  not  ultimately  be 
required,  different  methods  may  be  employed  of  depriving  the  trustees 
of  all  power  over  the  property.  The  first  method,  and  that  most  usually 
adopted  in  modern  times,  is  by  inserting  in  the  deed,  by  which  the  term 
is  created,  a  proviso  that  the  term  shall  cease,  not  only  at  its  expiration 
by  lapse  of  time,  but  also  in  the  event  of  the  purposes  for  which  it  is 
created  being  fully  performed  and  satisfied,  or  becoming  unnecessary,  or 
incapable  of  taking  effect.(/)  This  proviso  for  cesser,  as  it  is  called, 
makes  the  term  endure  so  long  only  as  the  purposes  of  the  trust  require  ; 
and,  when  these  are  satisfied,  the  term  expires  without  any  act  to  be 
done  by  the  trustees ;  their  title  at  once  ceases,  and  they  cannot,  if  they 
would,  any  longer  intermeddle  with  the  property. 

r* .  -.  o-i        But  if  a  proviso  for  cesser  of  the  term  should  not  be  *inserted 
in  the  deed  by  which  it  is  created,  there  is  still  a  method  of 

(/)  See  Sugd.  Vend.  &  Pur.  508,  13th  ed. 


OF   A    TERM    OF   YEARS.  413 

getting  rid  of  the  term,  without  disturbing  the  ownership  of  the  lands 
which  the  term  overrides.  The  lands  in  such  cases,  it  should  be  observed, 
may  not,  and  seldom  do,  belong  to  one  owner  for  an  estate  in  fee  simple. 
The  terms  of  which  we  are  now  speaking  are  most  frequently  created  by 
marriage  settlements,  and  are  the  means  almost  invariably  used  for 
securing  the  portions  of  the  younger  children  ;  whilst  the  lands  are 
settled  on  the  eldest  son  in  tail.  But,  on  the  son's  coming  of  age,  or  on 
his  marriage,  the  lands  are  for  the  most  part,  as  we  have  before  seen,(g) 
resettled  on  him  for  life  only,  with  an  estate  tail  in  remainder  to  his 
unborn  eldest  son.  The  owner  of  the  lands  is  therefore  probably  only  a 
tenant  for  life,  or  perhaps  a  tenant  in  tail.  But,  whether  the  estate  be 
a  fee  simple  or  an  estate  tail,  or  for  life  only,  each  of  these  estates  is, 
as  we  have  seen,  an  estate  of  freehold, (A)  and,  as  such,  is  larger,  in  con- 
templation of  law,  than  any  term  of  years,  however  long.  The  conse- 
quence of  this  legal  doctrine  is  that  if  any  of  these  estates  should  happen 
to  be  vested  in  any  person,  who  at  the  same  time  is  possessed  of  a  term 
of  years  in  the  same  land,  and  no  other  estate  should  intervene,  the 
estate  of  freehold  will  infallibly  swallow  up  the  term,  and  yet  be  not  a 
bit  the  larger.  The  term  will,  as  it  is  said,  be  merged  in  the  estate  of 
freehold.(«)  Thus,  let  A.  and  B.  be  tenants  for  a  term  of  1000  years, 
and,  subject  to  that  term,  let  C.  be  tenant  for  his  life ;  if  now  A.  and  B. 
should  assign  their  term  to  C.  (which  assignment  under  such  circum- 
stances is  called  a  surrender),  C.  will  still  be  merely  tenant  for  life  as 
before.  The  term  will  be  gone  forever ;  yet  C.  will  have  no  right  to 
make  any  disposition  to  endure  beyond  his  own  life.  He  had  the  leo-al 
seisin  of  the  *lands  before,  though  A.  and  B.  had  the  possession 
by  virtue  of  their  term;  now,  he  will  have  both  legal  seisin  and  L  -• 
actual  possession  during  his  life,  and  A.  and  B.  will  have  completely 
given  up  all  their  interest  in  the  premises.  Accordingly,  if  A.  and  B. 
should  be  trustees  for  the  purposes  we  have  mentioned,  a  surrender  by 
them  of  their  term  to  the  legal  owner  of  the  land  will  bring  back  the 
ownership  to  the  same  state  as  before.  The  act  to  amend  the  law  of 
real  property  (A;)  now  provides  that  a  surrender  in  writing  of  an  interest 
in  any  tenements  or  hereditaments,  not  being  a  copyhold  interest,  and 
not  being  an  interest  which  might'  by  law  have  been  created  without 
writing,  shall  be  void  at  law  unless  made  by  deed. 

The  merger  of  a  term  of  years  is  sometimes  occasioned  by  the  acci- 

{g)  Ante,  p.  50.  (h)  Ante,  pp.  22,  $6,  60. 

(i)  3  Prest.  Conv.  219.     See  ante,  pp.  249,  281. 

(k)  Stat.  8  &  9  Vict.  c.  106,  s.  3,  repealing  stat.  7  &  8  Vict.  c.  76,  s.  4,  to  the  same  effect. 
24 


414  OF    PERSONAL    INTERESTS   IN    REAL    ESTATE. 

dental  union  of  the  term  and  the  immediate  freehold  in  one  and  the 
same  person.  Thus,  if  the  trustee  of  the  term  should  purchase  the  free- 
hold, or  if  it  should  he  left  to  him  hy  the  will  of  the  former  owner,  or 
descend  to  him  as  heir  at  law,  in  each  of  these  cases  the  term  will  merge. 
So  if  one  of  two  joint  holders  of  a  term  obtain  the  immediate  freehold, 
his  moiety  of  the  term  will  merge ;  or  conversely,  if  the  sole  owner  of  a 
term  obtain  the  immediate  freehold  jointly  with  another,  one  moiety  of 
the  term  will  merge,  and  the  joint  ownership  of  the  freehold  will  con- 
tinue, subject  only  to  the  remaining  moiety  of  the  term.(Z)  Merger, 
being  a  legal  incident  of  estates,  formerly  occurred  quite  irrespectively 
of  the  trusts  on  which  they  may  be  held ;  but  equity  did  do  its  utmost 
to  prevent  any  injury  being  sustained  by  a  cestui  que  trust,  the  estate  of 
whose  trustee  may  accidentally  have  merged.(w)  The  *Supreme 
L  4i^J  Court  of  Judicature  Act,  1873,(w)  however,  provides(o)  that  there 
shall  not,  after  the  commencement  of  that  act,  which  took  place  on  the 
1st  of  November,  1815,(p)  be  any  merger  by  operation  of  law  only  of 
any  estate,  the  beneficial  interest  in  which  would  not  be  deemed  to  be 
merged  or  extinguished  in  equity.  The  law,  though  it  did  not  recognize 
the  trusts  of  equity,  yet  took  notice  in  some  few  cases  of  property  being 
held  by  one  person  in  right  of  another,  or  in  autre  droit,  as  it  is  called ; 
and  in  these  cases  the  general  rule  was  that  the  union  of  the  term  with 
the  immediate  freehold  would  not  cause  any  merger,  if  such  union  were 
occasioned  by  the  act  of  law,  and  not  by  the  act  of  the  party.  Thus,  if 
a  term  were  held  by  a  person,  to  whose  wife  the  immediate  freehold  after- 
wards came  by  descent  or  devise,  such  freehold,  coming  to  the  husband 
in  right  of  his  wife,  would  not  have  caused  a  merger  of  the  term.(^) 
So,  if  the  owner  of  a  term  make  the  freeholder  his  executor,  the  term 
would  not  have  merged  ;(r)  for  the  executor  is  recognized  by  the  law  as 
usually  holding  only  for  the  benefit  of  creditors  and  legatees ;  but  if  the 
executor  himself  should  be  the  legatee  of  the  term,  it  seems  that,  after 
all  the  creditors  have  been  paid,  the  term  will  merge.(s)  And  if  an 
executor,  whether  legatee  or  not,  holding  a  term  as  executor,  should 
purchase  the  immediate  freehold,  the  better  opinion  is  that  this,  being 

(l)  Sir  Ralph  Bovey's  Case,  1  Ventr.  193,  195  ;  Co.  Litt.  186  a;  Burton's  Compendium, 
pi.  900. 

(m)  See  3  Prest.  Conv.  320,  321.  {n)  Stat.  36  &  37  Vict.  c.  66. 

(o)  Sect.  25,  sub-sect.  (4).  {p)  Stat.  37  &  38  Vict.  c.  83. 

(q)  Doe  d.  Blight  v.  Pett,  11  Adol.  &  Ellis  842  (E.  C.  L.  R.  vol.  39)  ;  Jones  v.  Davies, 
5  H.  &  N.  766;  7  H.  &  N.  507. 

(r)  Co.  Litt.  338  b. 
'    (s)  3  Prest.  Conv.  310,  311.     See  Law  v.  Urlwin,  16  Sim.  377,  and  Lord  St.  Leonards' 
comments  on  this  case,  Sug.  V.  &  P.  507,  13th  ed. 


OF   A   TERM    OF   YEARS.  415 

his  own  act,  -will  occasion  the  merger  of  the  term,  except  so  far  as  respects 
the  rights  of  the  creditors  of  the  testator.(^) 

There  was  until  recently  another  method  of  disposing  *of  a    f*A-in-i 
term  when   the  purposes  for  which  it  was  created   had  been 
accomplished.     If  it  were  not  destroyed  by  a  proviso  for  cesser,  or  by  a 
merger  in  the  freehold,  it  might  have  been  kept  on  foot  for  the  benefit 
of  the  owner  of  the  property  for  the  time  being.     A  term,  as  we  have 
seen,  is  an  instrument  of  great  power,  yet  easily  managed;   and  in  case 
of  a  sale  of  the  property,  it  might  have  been  a  great  protection  to  the 
purchaser.     Suppose,  therefore,  that,  after  the  creation  of  such  a  term 
as  we  have  spoken  of,  the  whole  property  had  been  sold.     The  purchaser, 
in  this  case,  often  preferred  having  the  term  still  kept  on  foot,  and 
assigned  by  the  trustees  to  a  new  trustee  of  his  own  choosing,  in  trust 
for  himself,  his  heirs  and  assigns :  or,  as  it  was  technically  said,  in  trust 
to  attend  the  inheritance.     The  reason  for  this  proceeding  was  that  the 
former  owner  might,  possibly,  since  the  commencement  of  the  term,  have 
created  some  incumbrance  upon  the  property,  of  which  the  purchaser 
was  ignorant,  and  against  which,  if  existing,  he  was  of  course  desirous 
of  being  protected.     Suppose,  for  instance,  that  a  rent-charge  had  been 
granted  to  be  issuing  out  of  the  lands,  subsequently  to  the  creation  of 
the  term  :  this  rent-charge  of  course  could  not  affect  the  term  itself,  but 
was  binding  only  on  the  freehold,  subject  to  the  term.     The  purchaser, 
therefore,  if  he  took  no  notice  of  the  term,  bought  an  estate  subject  not 
only  to  the  term,  but  also  to  the  rent-charge.     Of  the  existence  of  the 
term,  however,  we  suppose  him  to  have  been  aware.     If  now  he  should 
have  procured  the  term  to  be  surrendered  to  himself,  the  unknown  rent- 
charge,  not  being  any  estate  in  the  land,  would  not  have  prevented  the 
union  and  merger  of  the  term  in  the  freehold.     The  term  would  conse- 
quently have  been  destroyed,  and  the  purchaser  would  have  been  left 
without  any  protection  against  the  rent-charge,  of  the  existence  of  which 
he  had  no  knowledge,  nor  any  means  of  obtaining  information.     The 
rent-charge,  by  this  *means,  became  a  charge,  not  only  on  the 
legal  seisin,  but  also  on  the  possession  of  the  lands,  and  was  said    *-         ■* 
to  be  accelerated  by  the  merger  of  the  term.(w)     The  preferable  method, 
therefore,  always  was  to  avoid  any  merger  of  the  term ;  but,  on  the  con- 
trary, to  obtain  an  assignment  of  it  to  a  trustee  in  trust  for  the  pur- 
chaser, his  heirs  and  assigns,  and  to  attend  the  inheritance.    The  trustee 
thus  became  possessed  of  the  lands  for  the  term  of  1000  years ;  but  he 

(t)  Sugd.  Vend.  &  Pur,  505,  13th  ed.  («)  3  Prest.  Conv.  460. 


417  OF  PERSONAL  INTERESTS  IN  REAL  ESTATE. 

was  bound,  by  virtue  of  the  trust,  to  allow  the  purchaser  to  receive  the 
rents,  and  exercise  what  acts  of  ownership  he  might  please.  If,  how- 
ever, any  unknown  incumbrance,  such  as  the  rent-charge  in  the  case 
supposed,  should  have  come  to  light,  then  was  the  time  to  bring  the 
term  into  action.  If  the  rent-charge  should  have  been  claimed,  the 
trustee  of  the  term  would  at  once  have  interfered,  and  informed  the 
claimant  that,  as  his  rent-charge  was  made  subsequently  to  the  term,  he 
must  wait  for  it  until  the  term  was  over,  which  was  in  effect  a  postpone- 
ment sine  die.  In  this  manner  a  term  became  a  valuable  protection  to 
any  person  on  whose  behalf  it  was  kept  on  foot,  as  well  as  a  source  of 
serious  injury  to  any  incumbrancer,  such  as  the  grantee  of  the  rent- 
charge,  who  might  have  neglected  to  procure  an  assignment  of  it  on  his 
own  behalf,  or  to  obtain  a  declaration  of  trust  in  his  favor  from  the 
legal  owner  of  the  term.  For  it  will  be  observed  that,  if  the  grantee  of 
the  rent-charge  had  obtained  from  the  persons  in  whom  the  term  was 
vested  a  declaration  of  trust  in  his  behalf,  they  would  have  been  bound 
to  retain  the  term,  and  could  not  lawfully  have  assigned  it  to  a  trustee 
for  the  purchaser. 

If  the  purchaser,  at  the  time  of  his  purchase,  should  have  had  notice 
of  the  rent-charge,  and  should  yet  have  procured  an  assignment  of  the 
term  to  a  trustee  for  his  *own  benefit,  the  Court  of  Chancery 
L  -1  would,  on  the  first  principles  of  equity,  have  prevented  his  trustee 
from  making  any  use  of  the  term  to  the  detriment  of  the  grantee  of  the 
rent  charge. (a;)  Such  a  proceeding  would  evidently  be  a  direct  fraud, 
and  not  the  protection  of  an  innocent  purchaser  against  an  unknown 
incumbrance.  To  this  rule,  however,  one  exception  was  admitted,  which 
reflects  no  great  credit  on  the  gallantry,  to  say  the  least,  of  those  who 
presided  in  the  Court  of  Chancery.  In  the  common  case  of  the  sale  of 
lands  in  fee  simple  from  A.  to  B.,  it  was  holden  that,  if  there  existed  a 
term  in  the  lands,  created  prior  to  the  time  when  A.'s  seisin  commenced, 
or  prior  to  his  marriage,  an  assignment  of  his  term  to  a  trustee  for  B. 
might  be  made  use  of  for  the  purpose  of  defeating  the  claim  of  A.'s  wife, 
after  his  decease,  to  her  dower  out  of  the  premises. {y)  Here  B.  evidently 
had  notice  that  A.  was  married,  and  he  knew  also  that,  by  the  law,  the 
widow  of  A.  would,  on  his  decease,  be  entitled  to  dower  out  of  the  lands. 
Yet  the  Court  of  Chancery  permitted  him  to  procure  an  assignment  of 
the  term  to  a  trustee  for  himself,  and  to  tell  the  widow  that,  as  her  right 
to  dower  arose  subsequently  to  the  creation  of  the  term,  she  must  wait 

(a;)  Willoughby  v.  Willoughby,  1  T.  Rep.  763. 

(y)  Sugd.  Vend.  &  Pur.  510,  13th  ed.;  Co.  Litt.  208  a,  n.  (1). 


OF   A   TERM    OF   YEARS.  418 


for  her  dower  till  the  term  was  ended.  We  have  already  seen(z)  that,  as 
to  all  women  married  after  the  first  of  January,  1834,  the  right  to  dower 
has  been  placed  at  the  disposal  of  their  husbands.  Such  husbands,  there- 
fore had  no  need  to  request  the  concurrence  of  their  wives  in  a  sale  of 
their  lands,  or  to  resort  to  the  device  of  assigning  a  term  should  this 
concurrence  not  have  been  obtained. 

When  a  term  had  been  assigned  to  attend  the  inheritance,  g-j 

the  owner  of  such  inheritance  was  not  regarded,  in  consequence 
of  the  trust  of  the  term  in  his  favor,  as  having  any  interest  of  a  persona 
nature,  even  in  contemplation  of  equity;  but  as,  at  law,  he  had  a  real 
estate  of  inheritance  in  the  lands,  subject  to  the  term,  so,  in  equity   he 
had   by  virtue  of  the  trust  of  the  term  in  his  favor,  a  real  estate  of  in- 
heritance in  immediate  possession  and  enjoyment.(a)     If  the  term  were 
neither  surrendered  nor  assigned  to  a  trustee  to  attend  the  inheritance 
it  still  was  considered  attendant  on  the  inheritance,  by  construction  ot 
law,  for  the  benefit  of  all  persons  interested  in  the  inheritance  according 
to  their  respective  titles  and  estates. 

An  act  has,  however,  been  passed  "to  render  the  assignment  of  satis- 
fied terms  unnecessary."^)     This  act  provides(C)  that  every  satisfied 
term  of  years  which,  either  by  express  declaration  or  by  construction  ot 
law,  shall  upon  the  thirty-first  day  of  December,  1845,  be  attendant  upon 
the  reversion  or  inheritance  of  any  lands,  shall  on  that  day  absolutely 
cease  and  determine  as  to  the  land  upon  the  inheritance  or  reversion 
whereof  such  term  shall  be  attendant  as  aforesaid,  except  that  every 
such  term  of  years,  which  shall  be  so  attendant  as  aforesaid  by  express 
declaration,  although  thereby  made  to  cease  and  determine,  shall  attora 
to  every  person  the  same  protection  against  every  incumbrance,  charge, 
estate,  right,  action,  suit,  claim,  and  demand,  as  it  would  have  afforded 
to  him  if  it  had  continued  to  subsist,  but  had  not  been  assigned  or  dealt 
with,  after  the  said  thirty-first  day  of  December,  1845,  and  shall,  for  the 
purpose  of  such  protection,  be  considered  in  every,  court  of  law  and  ot 
equity  to  be  a  subsisting  term.    *The  act  further  provides(d)  that    ^42()-j 
every  term  of  years  then  subsisting,  or  thereafter  to  be  created, 
becoming  satisfied  after  the  thirty-first  of  December,  1845   and  which 
either  by  express  declaration  or  by  construction  of  law,  shall  alter  that 

(i)  Ante,  p.  236.  «  Sugd.  Vend.  &  Pur.  790,  11th  ed. 

(b)  Stat.  8  &  9  Vict.  c.  112.  (c)  Sect.  1. 

\d)  Stat.  8  &  9  Vict.  c.  112,  s.  2  ;  Anderson  v.  Pignet,  L.  C.  &  LL.  J.;  21  W.  R.  150, 
L.  R.  8  Ch.  180. 


420  OF  PEKSONAL  INTERESTS  IN  REAL  ESTATE. 

day  become  attendant  upon  the  inheritance  or  reversion  of  any  land, 
shall,  immediately  upon  the  same  becoming  so  attendant,  absolutely 
cease  and  determine  as  to  the  land  upon  the  inheritance  or  reversion 
whereof  such  term  shall  become  attendant  as  aforesaid. (e)  In  the  two 
first  editions  of  this  work,  some  remarks  on  this  act  were  inserted  by 
way  of  Appendix.  These  remarks  are  now  omitted,  not  because  the 
author  has  changed  his  opinion  on  the  wording  of  the  act,  but  because 
the  remarks,  being  of  a  controversial  nature,  seem  to  him  to  be  scarcely 
fitted  to  be  continued  in  every  edition  of  a  work  intended  for  the  use  of 
students,  and  also  because  the  act  has,  upon  the  whole,  conferred  a  great 
benefit  on  the  community.  Experience  has  in  fact  shown  that  the  cases 
in  which  purchasers  enjoy  their  property  without  any  molestation  are 
infinitely  more  numerous  than  those  in  which  they  are  compelled  to  rely 
on  attendant  terms  for  protection ;  so  that  the  saving  of  expense  to  the 
generality  of  purchasers  seems  greatly  to  counterbalance  the  inconveni- 
ence to  which  the  very  small  minority  may  be  put,  who  have  occasion  to 
set  up  attendant  terms  as  a  defence  against  adverse  proceedings.  And 
it  is  very  possible  that  some  of  the  questions  to  which  this  act  gives  rise 
may  never  be  actually  litigated  in  a  court  of  justice. 

(e)  It  has  been  decided  that  a  term  of  years  assigned  to  a  trustee  in  trust  for  securing 
a  mortgage  debt,  aud  subject  thereto  to  attend  the  inheritance,  is  not  an  attendant 
term  within  this  act.     Shaw  v.  Johnson,  1  Drew  &  Smale  412. 


*C  HAP  TEE,   II.  [*421] 

OF   A    MORTGAGE    DEBT. 

Our  next  subject  for  consideration  is  a  mortgage  debt.  The  term 
mortgage  debt  is  here  employed  for  want  of  one  which  can  more  pre- 
cisely express  the  kind  of  interest  intended  to  be  spoken  of.  Every 
person  who  borrows  money,  whether  upon  mortgage  or  not,  incurs  a 
debt  or  personal  obligation  to  repay  out  of  whatever  means  he  may 
possess ;  and  this  obligation  is  usually  expressed  in  a  mortgage  deed 
in  the  shape  of  a  covenant  by  the  borrower  to  repay  the  lender  the 
money  lent,  with  interest  at  the  rate  agreed  on.  If,  however,  the 
borrower  should  personally  be  unable  to  repay  the  money  lent  to  him, 
or  if,  as  occasionally  happens,  it  is  expressly  stipulated  that  the  borrower 
shall  not  be  personally  liable  to  repay,  then  the  lender  must  depend 
solely  upon  the  property  mortgaged ;  and  the  nature  of  his  interest  in 
such  property,  here  called  his  mortgage  debt,  is  now  attempted  to  be 
explained.  In  this  point  of  view,  a  mortgage  debt  may  be  defined  to  be 
an  interest  in  land  of  a  personal  nature,  which  was  recognized  as  such 
only  by  the  Court  of  Chancery,  in  its  office  of  administering  equity. 
We  have  seen  in  the  chapter  on  Uses  and  Trusts  that  the  Court  of 
Chancery  is  now  abolished,  although  the  doctrines  of  equity  remain  the 
same.  In  equity,  a  mortgage  debt  is  a  sum  of  money,  the  payment 
whereof  is  secured,  with  interest,  on  certain  lands  ;  and  being  money,  it 
is  personal  property,  subject  to  all  the  incidents  which  appertain  to  such 
property.  The  courts  of  law,  on  the  other  hand,  did  not  regard  a  mort- 
gage in  *the  light  of  a  mere  security  for  the  repayment  of  money  r*4oo-| 
with  interest.  A  mortgage  in  law  was  an  absolute  conveyance, 
subject  to  an  agreement  for  a  reconveyance  on  a  certain  given  event. 
Thus,  let  us  suppose  freehold  lands  to  be  conveyed  by  A.,  a  person 
seised  in  fee,  to  B.  and  his  heirs,  subject  to  a  proviso  that  on  repayment 
on  a  given  future  day,  by  A.  to  B.,  of  a  sum  of  money  then  lent  by  B. 
to  A.,  with  interest  until  repayment,  B.  or  his  heirs  will  reconvey  the 
lands  to  A.  and  his  heirs ;  and  with  a  further  proviso  that  until  default 
shall  be  made  in  payment  of  the  money,  A.  and  his  heirs  may  hold  the 
land  without  any  interruption  from  B.  or  his  heirs.     Here  we  have  at 


422 


OF    PERSONAL    INTERESTS    IN    REAL    ESTATE. 


once  a  common  mortgage  of  freehold  land. (a)     A.,  who  conveys  the  land, 

r*42°1    *S  ca^e(^  *tne  mortgagor  ;  B.,  who  lends  the  money,  and  to  whom 

the  land  is  conveyed,  is  called  the  mortgagee.     The  conveyance 

(a)  The  following    duties  are  imposed  by  the  Stamp  Act,   1870,  stat.  33  &  34  Vict, 
c.  97  :— i 

Mortgage,  bond,  debenture,  covenant,  warrant  of  attorney  to  con- 
fess and  enter  up  judgment,  and  foreign  security  of  any  kind  : 
(1)  Being  the  only  or  principal  or  primary  security  for — 


The  payment  or  repayment  of  money  not  exceeding 
Exceeding  25/.  and  not  exceeding  50/. 


25/ 


50/. 
100Z. 

150/. 
200/. 
250/. 
300/. 


100/. 
150/. 
200/. 
250/. 
300/. 


£ 

s. 

d. 

0 

0 

8 

0 

1 

3 

0 

2 

6 

0 

3 

9 

0 

5 

0 

0 

6 

3 

0 

7 

6 

For  every  100/.  and  also  for  any  fractional  part  of  100/.  of 

such  amount  .     .  .     .  .     .  ..026 

(2)  Being  a   collateral  or  auxiliary  or  additional  or  substituted 

security,  or  by  way  of  further  assurance  for  the  above- 
mentioned  purpose  where  the  principal  or  primary  security 
is  duty  stamped  : 

For  every  100/.  and  also  for  any  fractional  part  of  100/. 

of  the  amount  secured  .     .  .     .  ..006 

(3)  Transfer,    assignment,     disposition,    or    assignation    of    any 

mortgage,  bond,  debenture,  covenant,  or  foreign  security, 
or  of  any  money  or  stock  secured  by  any  such  instrument, 
or  by  any  warrant  of  attorney  to  enter  up  judgment,  or 
by  any  judgment  : 

For  every  100/.  and  also  for  any  fractional  part  of  100/. 

of  the  amount  transferred,  assigned,  or  disponed     ..006 

And  also   where  any  further  money   is  added   to  the)  The  same  duty  as  a  prin- 

.  j  ,  V     cipal  security  for  such 

money  already  secured  .     .  .     .  .     .  j    further  money. 

(4)  Reconveyance,    release,    discharge,    surrender,    re-surrender, 

warrant  to  vacate,  or  renunciation  of  any  such  security, 
as  aforesaid,  or  of  the  benefit  thereof,  or  of  the  money 
thereby  secured  : 

For  every  100/.  and  also  for  any  fractional  part  of  100/. 
of  the  total  amount  or  value  of  the  money  at  any  time 
secured       ..  ..  ..  ..  ..006 


1  By  the  act  of  Congress  of  the  30th 
June,  1864,  mortgages  or  conveyances  in 
trust,  &c,  made  as  security  for  money  lent, 
where  the  sum  to  be  secured  exceeds  one 
hundred  dollars  and  does  not  exceed  five 
hundred,  were  subject  to  a  stamp  duty  of 
fifty  cents,   and  fifty  cents  additional  for 


every  additional  five  hundred  dollars  or 
fractional  part  thereof  to  be  secured.  And 
the  same  duty  is  payable  upon  every  as- 
signment or  transfer  of  the  mortgage.  2 
Brightly's  U.  S.  Digest  271.  M. 

The   act   of  Congress   of  July   1,    1862, 
called  the    Excise   Tax  Law,  which  went 


OF    A    MORTGAGE    DEBT. 


423 


of  the  land  from  A.  to  B.  gives  to  B.,  as  is  evident,  an  estate  in  fee  sim- 
ple at  law.  He  thenceforth  becomes,  at  law,  the  absolute  owner  of  the 
premises,  subject  to  the  agreement  under  which  A.  has  a  right  of  enjoy- 
ment, until  the  day  named  for  the  payment  of  the  money  ;{b)  on  which 
day,  if  the  money  be  duly  paid,  B.  has  agreed  to  reconvey  the  estate  to 

A.  If,  when  the  day  comes,  A.  should  repay  the  money  with  interest, 

B.  of  course  must  reconvey  the  lands;1  but  if  the  money  should  not  be 
repaid  punctually  on  the  day  fixed,  there  is  evidently  nothing  on  the 
face  of  the  arrangement  to  prevent  B.  from  keeping  the  lands  to  himself 
and  his  heirs  forever.  But  upon  this  arrangement,  a  very  different 
construction  is  placed  by  the  courts  of  law  and  by  the  courts  of  equity, 
a  construction  which  well  illustrates  the  difference  between  the  two. 


The  courts  of  law,  adhering,  according  to  their  ancient  custom,  to  the 

(b)  See  as  to  this,  Doe  d.  Roylance  v.  Lightfoot,  8  Mee.  &  W.  553  ;  Doe  d.  Parsley  v. 
Day,  2  Q.  B.  147  (E.  C.  L.  R.  vol.  42)  ;  Rogers  v.  Grazebrook,  8  Q.  B.  895  (E.  C.  L  R. 
vol.  55j. 


into  operation  September  1,  1862,  first  im- 
posed a  stamp  tax  upon  all  mortgages, 
according  to  the  amount  thereby  secured  ; 
and  required  all  assignments  of  mortgage 
to  be  stamped  with  the  same  amount  as 
the  original  instrument.  The  stamp  upon 
assignments  of  mortgage  was  repealed 
by  the  act  of  July  13,  1870,  in  all  cases 
where  the  mortgage  itself  had  been  duly 
stamped.  And  the  stamp  duties  were 
abolished  altogether  (except  as  to  bank- 
checks)  by  the  act  of  June  6,  1872,  which 
took  effect  October  1,  1872.  See  a?ite,  p. 
150,  note  1. 

1  It  was  formerly  thought  that  not  even 
a  strict  performance  of  the  condition 
would  revest  the  legal  estate  in  the  mort- 
gagor without  a  reconveyance,  and  that 
when  the  condition  was  not  strictly  per- 
formed the  case  was  much  stronger. 
Since,  however,  a  mortgage  has  come  to 
be  considered  as  but  the  security  for  the 
payment  of  the  debt,  it  is  believed  that  a 
reconveyance  is  seldom  necessary  on  either 
side  of  the  Atlantic,  when  payment  has 
been  made  either  before  or  after  the  day 
appointed  therefor :  Grey  v.  Jenks,  3  Mason 
526;  Armitage  v.  Wickliffe,  12  B.  Monroe 
488.     "  The  assignment  of  the  debt,  or  for- 


giving it,"  said  Lord  Mansfield  in  Martin 
v.  Mowlin,  2  Burrow  978,  "  will  draw  the 
land  after  it,  though  the  debt  were  for- 
given only  by  parol."  And  in  most  of  the 
States,  provision  is  made  by  statute  for 
the  discharge  of  mortgages,  by  the  entry 
of  satisfaction  upon  the  margin  of  the 
registry  (see  2<*reenleafs  Cruise  91,  note). 
As  now  usually  drawn,  mortgages  contain 
an  express  provision  that  on  payment  of 
the  money  at  the  appointed  time,  the 
mortgage  shall  be  void,  and  the  estate 
thereby  granted  cease  and  determine ; 
and,  as  the  time  of  the  performance  is  not 
regarded  as  of  the  essence  of  the  contract, 
the  acceptance  of  the  money  by  the  mort- 
gagee is  deemed  a  waiver  of  the  time  : 
Arnott  v.  Post,  6  Hill  65  ;  Edwards  v.  The 
Farmers'  Fire  Ins.  Co.,  21  Wendell  467  ; 
though,  in  strictness,  a  tender  of  the 
money  after  the  day  is  neither  perform- 
ance nor  payment,  and  merely  lays  a 
ground  for  the  intervention  of  equity  to 
compel  the  mortgagee  to  receive  it :  Mer- 
ritt  v.  Lambert,  7  Paige  344  ;  Post  v.  Ar- 
nott, 2  Denio  344;  Charter  v.  Stevens,  3 
Id.  33  ;  Mr.  Hare's  note  to  Keech  v.  Hall, 
1  Smith's  Lead.  Cases  811,  6th  Am.  ed. 

R. 


423  OF   PERSONAL    INTERESTS    IN    REAL    ESTATE. 

strict  literal  meaning  of  the  term,  held  that  if  A.  did  not  pay  or  tender 
[*424]    the  morieJ  punctually  *on  the  day  named,  he  shall  lose  the 

land  forever ;  and  this,  according  to  Littleton,(c)  is  the  origin 
of  the  term  mortgage  or  mortuum  vadium,  "for  that  it  is  doubtful 
whether  the  feoffor  will  pay  at  the  day  limited  such  sum  or  not ;  and  if 
he  doth  not  pay,  then  the  land  which  is  put  in  pledge,  upon  condition 
for  the  payment  of  the  money,  is  taken  from  him  forever,  and  is  dead 
to  him  upon  condition,  &c.  And  if  he  doth  pay  the  money,  then  the 
pledge  is  dead  as  to  the  tenant,"  &c.  Correct,  however,  as  is  Littleton's 
statement  of  the  law,  the  accuracy  of  his  derivation  may  be  questioned ; 
as  the  word  mortgage  appears  to  have  been  applied,  in  more  early  times, 
to  a  feoffment  to  the  creditor  and  his  heirs,  to  be  held  by  him  until  his 
debtor  paid  him  a  given  sum  ;  until  which  time  he  received  the  rents 
without  account,  so  that  the  estate  was  unprofitable  or  dead  to  the 
debtor  in  the  meantime  ;{d)  the  rents  being  taken  in  lieu  of  interest, 
which,  under  the  name  of  usury,  was  anciently  regarded  as  an  unchris- 
tian abomination. (e)  This  species  of  mortgage  has,  however,  long  been 
disused,  and  the  form  above  given  is  now  constantly  employed.  From 
the  date  of  the  mortgage  deed,  the  legal  estate  in  fee  simple  belongs,  not 
to  the  mortgagor,  but  to  the  mortgagee.  The  mortgagor,  consequently, 
is  thenceforward  unable  to  create  any  legal  estate  or  interest  in  the 
premises ;  he  cannot  even  make  a  valid  lease  for  a  term  of  years(Z)1 — 
a  point  of  law  too  frequently  neglected  by  those  whose  necessities  have 
obliged  them  to  mortgage  their  estates.  Formerly  when  the  day  named 
l~*4°5"l    *"°r  Payment  nac*  passed,  the  *mortgagee,  if  not  repaid  his  money, 

might  at  any  time  have  brought  an  action  of  ejectment  against 
the  mortgagor  without  any  notice,  and  thus  have  turned  him  out  of  pos- 
session;^) so  that,  if  the  debtor  had  now  no  greater  mercy  shown  to 

(c)  Sect.  332. 

(d)  Glanville,  lib.  10,  cap.  6,  Coote  on  Mortgages,  book  I.,  ch.  2. 

(e)  Interest  was  first  allowed  by  law  bj  stat.  37  Hen.  VIII.  c.  9,  by  which  also 
interest  above  ten  per  cent,  was  forbidden. 

(/)  See  Doe  d.  Barney  v.  Adams,  2  Cro.  &  Jerv.  235 ;  Whitton  v.  Peacock,  2  Bing. 
N.  C.  411  (E.  C.  L.  R.  vol.  29)  ;  Green  v.  James,  6  Mee.  &  Wels.  656;  Doe  d.  Lord 
Downe  v.  Thompson,  9  Q.  B.  1037  (E.  C.  L.  R.  vol.  58)  ;  Cuthbertson  v.  Irving,  4  H.  & 
N.  724,  6  H.  &  N.  135  ;  Saunders  v.  Merryweather,  3  H.  &  Colt.  902. 

(ff)  Keech  v.  Hall,  Doug.  21  ;  Doe  d.  Robey  v.  Maisey,  8  Bar.  &  Cres.  767  (E.  C.  L. 

1  That  is  to  say,  such  a  lease  will  be  opinion    that    a    lease   by   a    mortgagor 

liable  to   be  defeated   by  the   paramount  amounts  to  a  disseisin  of  the  mortgagee 

right  of  the  mortgagee.     Notes  to  Keech  (Mr.  Coventry's  note  to  1  Powell  on  Mort- 

v.  Hall,  1  Smith's  Lead.  Cases  662    (811  gages  160)  cannot  now  be  considered  as 

6th  Am.  ed.)  ;  Evans  v.  Elliott,  9  Ad.  &  recognized,  4  Kent's  Com.  157.  R. 

El.  342    (E.  C.  L.  R.  vol.  36).     The  old 


OF   A    MORTGAGE   DEBT. 

him  than  the  courts  of  law  allowed,  the  smallest  want ;  o< ^*«g  £ 
his  payment  wonld  cause  him  forever  to  lose  the :  estat he  had  P edged 
In  modern  times,  a  provision  was  certai  *»££*£,        b X 
for  staving  the  proceedings  J^  "^/^ The  Ifendlnt  in  the      • 
mortgagee,  on  payment  hy  the  mortgagor   oei  g 
action,^)  of  all  principal,  interest,  and  cost.©     But  at  the  *™        f  „ 
enactment,  the  jurisdiction  of  equity  over  mortgages  ^  «  only 
established ;  and  the  act  may  consequently  he  regarded  as  »^on  ,. 
to  that  full  relief  which  as  we  shall  see     he  Court  of  Chancery 
accustomed  to  afford  to  the  mortgagor  m  all  such    ases.     The ^nprem 
Court  of  Judicature  Act,  1873,(4)  now  provides®  that  a  mortga «o 
entitled  for  the  time  being  to  the  possession  or  receipt  of  the  rents  and 
;  It  of  any  laud,  as  to  which  no  notice  of  Ins  in  entmn  to  tahe  £ 
session  or  to  enter  into  the  receipt  of  the  rents  and  P^STJ  for 
have  heen  given  by  the  mortgagee,  may  sue  for  such  possess  on  o 
the  recover?  of  such  rents  or  profits,  or  to  prevent  or  recover 
in  respect  of  any  trespass  or  other  wrong  relate  theret mh»  o 
name  only,  unless  the  cause  of  action  arises  upon  a  lease  or  othel 
tract  made  by  him  jointly  with  any  other  person. 

The  relative  rights  of  mortgagor  and  mortgagee  *appear  to         2g] 
have  long  remained  on  the  footing  of  the  stnct  eon struct.on  ^ » 
their  bargain  adopted  by  the  courts  of  law     »  ™  no .^^ 
of  James  I.  that  the  Court  of  Chaneery  took  npon  itself  to  mterte 
between  the  parties.^)    But  at  length,  hav.ng  determined  to  mterpose 
it  went  so  for  as  boldly  to  lay  down  as  one  of  its  rules  tha no ^  agree 
me„t  of  the  parties,  for  the  exclusion  of  its  inte rference,  h on ^ave  any 
ff„„i  t,,\     This  rule    no  less  benevolent  than   bold,  is  a  stnKin0 
Un  e  of  tha    del    in  nation  to  enforce  fair  dealing  between  man  and 
*;  wblch  raised  the  Court  of  Chaneery  notwithstanding  the  m»y 
defects  in  its  system  of  administration,  to  ^.P^J^fX  the 
it  enjoyed.1     The  Court  of  Chancery  accordingly  held  that, 

E.  „,.  ,5, ;  Doe  d.  Fisher  v.  Giles,  5  Biag.  42,  (K  0.  L.  E.  vol.  15)  ;  Coote  on  Mor.- 
§a^d: \ttr.  GUI**  4  Ado..  *  m.  814  (E.  0.  £  Evd.  31). 
«  **  y  T  ,Vt*  6S1'  "  *  "  °'  W    ee  .  'm!-,  (.). 


426 


OF    PERSONAL   INTERESTS    IN    REAL    ESTATE. 


day  fixed  for  the  payment  of  the  money  had  passed,  the  mortgagor  had 
still  a  right  to  redeem  his  estate,  on  payment  to  the  mortgagee  of  all 
principal,  interest,  and  costs  due  upon  the  mortgage  to  the  time  of  actual 
payment.  This  right  still  remains,  and  is  called  the  mortgagor's  equity 
of  redemption ;  and  no  agreement  with  the  creditor,  expressed  in  any 
terms,  however  stringent,  can  deprive  the  debtor  of  his  equitable  right, 
on  payment  within  a  reasonable  time.1     The  Judicature  Act,  1873,(o) 

(o)  Stat.  36  &  37  Vict.  c.  66,  s.  34. 


original  severity  of  the  common  law, 
treating  the  mortgagor's  interest  as  rest- 
ing upon  the  exact  performance  of  a  con- 
dition, and  holding  the  forfeiture  or  the 
breach  of  a  condition  to  be  absolute,  by 
non-payment  or  tender  at  the  day,  is 
entirely  relaxed  ;  but  the  narrow  and  pre- 
carious character  of  the  mortgagor  at  law 
is  changed,  under  the  more  enlarged  and 
liberal  jurisdiction  of  the  court  of  equity. 
Their  influence  has  reached  the  courts  of 
law,  and  the  case  of  mortgages  is  one  of 
the  most  splendid  instances,  in  the  history 
of  our  jurisprudence,  of  the  triumph  of 
equitable  principles  over  technical  rules, 
and  of  the  homage  which  those  principles 
have  received,  by  their  adoption  in  the 
courts  of  law."  M. 

1  In  other  words,  equity  will  not  suffer 
any  agreement  in  a  mortgage  to  prevail, 
which  will  change  the  latter  into  an  abso- 
lute conveyance,  upon  any  condition  or 
event  whatever  :  Howard  v.  Harris,  1  Ver- 
non 190 ;  and  hence  no  waiver  by  the 
mortgagor  of  his  equity  of  redemption  will 
be  allowed  to  defeat  or  impair  it,  or  to 
hinder  its  transfer  unfettered  to  a  third 
person :  Newcomb  v.  Bonham,  1  Vernon 
7  ;  Clark  v.  Henry,  2  Cowen  324;  Johnson 
v.  Gray,  16  Serg.  &  Rawle  361  ;  Rankin  v. 
Mortimere,  7  Watts  372.  This  is  equally 
so  whether  the  transaction  appears,  as  it 
usually  does,  upon  the  face  of  the  instru- 
ment to  be  a  mortgage,  or  whether  this  is 
shown  by  any  other  instrument:  Dey  v. 
Dunham,  2  Johns.  Ch.  182 ;  Palmer  v. 
Guernsey,  7  Wendell  248;  Nugent  v.  Riley, 
1  Metcalf  117  ;  Heister  v.  Maderia,  3  Watts 
&  Serg.  384  ;  or  even  by  parol :  Kunkle  v. 
Wolfsberger,  6  Watt  126;  Haniit  v.  Dun- 


das,  4  Barr  178;  Morris  v.  Nixon,  1  How- 
ard's U.  S.  Rep.  118;  Russel  v.  Southard, 
12  Id.  139;  Strong  v.  Stewart,  4  Johns. 
Ch.  467.  "The  course  of  decision,"  says  Mr. 
Hare  in  his  note  to  Thornborough  v.  Baker, 
3  Lead.  Cas.  in  Equity  628,  634,  3d  Am.  ed. 
[4th  Am.  ed.,  vol.  2,  p.  1983,  et  seq.],  to 
which  the  student  is  referred  for  an  elab- 
orate discussion  of  this  branch  of  the  law 
of  mortgage,  "  which  allows  the  legal  ef- 
fects of  a  deed,  whether  absolute  or  con- 
ditional, to  be  varied  by  parol  evidence  of 
the  circumstances  under  which  it  was 
given,  or  the  object  which  it  was  designed 
to  fulfill,  is  not  inconsistent  either  with  the 
Statute  of  Frauds  or  the  more  general 
rules  of  evidence  of  the  common  law.  If 
it  were  so,  the  equity  of  redemption  of  the 
mortgagor,  and  the  whole  system  of  equity 
as  to  mortgages,  could  have  no  existence ; 
for  nothing  can  be  a  greater  departure 
from  the  terms  of  an  instrument,  than 
to  convert  a  deed,  conditioned  to  be 
void  on  the  performance  of  an  act  by  the 
grantor  on  a  day  certain,  which,  like  all 
conditions  in  avoidance,  is  legally  inop- 
erative unless  fulfilled  to  the  letter,  into 
a  vested  equitable  estate,  exposed  to  a  legal 
forfeiture  against  which  equity  will  relieve. 
Yet  such  is  the  long  and  well-established 
course  adopted  in  Chancery,  in  every  in- 
stance in  which  it  has  occasion  to  pass 
judgment  upon  the  respective  rights  of  a 
mortgagor  or  mortgagee.  It  is  obvious, 
therefore,  that  the  equity  of  the  mortgagor 
is  paramount  to  the  deed,  and  that  facts 
and  circumstances,  establishing  its  exist- 
ence, may  be  given  in  evidence,  not  as 
contradicting  the  deed,  but  as  controlling 
its  operation.    .    .   .    There  is,  however,  no 


OF    A    MORTGAGE    DEBT. 


426 


has  expressly  assigned  to  the  Chancery  Division  of  the  High  Court  of 
Justice  all  causes  and  matters  for,  amongst  other  things,  the  redemption 
or  foreclosure  of  mortgages.  If,  therefore,  after  the  day  fixed  in  the 
deed  for  payment,  the  mortgagee  should  enter  into  possession  of  the 
property  mortgaged,  the  Chancery  Division  of  the  High  Court  will  never- 
theless compel  him  to  keep  a  strict  account  of  the  rents  and  profits;  and, 
when  he  has  received  so  much  as  will  suffice  to  repay  him  the  principal 
money  lent,  together  with  interest  and  costs,  he  will  be  *com-  r*A971 
pelled  to  reconvey  the  estate  to  his  former  debtor.     In  equity  ■* 

the  mortgagee  is  properly  considered  as  having  no  right  to  the  estate, 
further  than  is  necessary  to  secure  to  himself  the  due  repayment  of  the 


principle  of  law  or  equity  which  prohibits 
a  conditional  contract  for  the  sale  of  real 
or  personal  property,  or  forbids  a  vendor 
to   make  an  absolute    conveyance   of  the 
property    sold,  subject    to    an    agreement 
that  he  shall  be  entitled  to  a  reconveyance 
upon    the    repayment    of    the    purchase- 
money,  or  paying  any  other  sum   certain, 
or  capable  of  being  reduced  to  certainty, 
on  or  before  a  period  fixed  by  the  terms  of 
the    agreement  :     Conway's    Executors    v. 
Alexander,   7   Cranch  218;  Flagg  v.  Man, 
14  Pick.  467  ;  Holmes  v.  Grant,   8   Paige 
243  ;  Brown  v.  Dewey,  2  Barbour  28,  172  ; 
Kelly     v.    Bryan,    6    Iredell's    Eq.    283; 
M'Kinstry    v.    Conly,     12    Alabama    678. 
The    principle    thus    established,    that    a 
mortgage  is  necessarily  and  essentially  a 
security  for  a  debt,  and  that  when  no  debt 
exists  a  mortgage  is  impossible,  is  too  ob- 
viously   true    to    require    demonstration  : 
Lund  v.  Lund,  1  New  Hamp.  39.     Those 
cases  must,  undoubtedly,  be  excepted  from 
this  rule,  in  which  the  transaction  is  really 
a  loan,  and  where  the  tender  takes  advan- 
tage of  the  necessities  of  the  borrower  to 
force  him  into  a  conditional  sale,  which  is 
a  mere  cover  to  au  irredeemable  mortgage. 
And  as  it  is  difficult  to  guard  against  this 
danger   without   a   rigorous  rule  of  con- 
struction, courts  of  equity  lean,  in  doubt- 
ful cases,  in  favor  of  construing  defeasible 
conveyances   as    mortgages,    and    not    as 
conditional  sales  :    Poindexter  v.  M'Can- 
nan,  2  Devereux's  Equity  273.     But  save 
in  this  respect,  the  doctrine  held  in  Con- 


way's Executors  v.  Alexander  does  not 
admit  of  denial  or  even  qualification."  It 
has,  however,  been  held,  in  Pennsylvania, 
that  although  parol  evidence  is  admissi- 
ble to  show  that  what  appears  on  its  face 
to  be  an  absolute  sale  was  intended  to  be 
only  a  security  for  a  debt,  yet  that  an  in- 
strument of  writing,  appearing  upon  its 
face  to  be  a  mortgage,  cannot  be  converted, 
by  parol  evidence,  into  a  conditional  sale  : 
Kerr  v.  Gilmore,  6  Watts  405;  Brown  v. 
Nickel,  6  Barr  390 ;  Woods  v.  Wallace,  10 
Harris  176.  R. 

It  may  be  stated  as  a  general  rule  that 
whenever  land  is  conveyed  as  security  for 
the  payment  of  money,  no  matter  what  the 
agreements  of  the  parties  may  be,  equity 
will  construe  the  conveyance  as  a  mort- 
gage, and  will  not  allow  the  creditor  to 
have  more  than  is  justly  due  to  him,  with 
interest;  and  although  the  conveyance  be 
absolute  upon  its  face,  yet  the  fact  that  it 
was  meant  only  as  a  security  may  be 
proved  by  verbal  testimony :  Speriug's 
Appeal,  10  P.  F.  Smith  210  ;  Maffitt  v.  Rynd, 
19  P.  F.  Smith  387  ;  Sweetzer's  Appeal,  21 
Id.  264  ;  Harper's  Appeal,  14  P.  F.  Sm. 
315  ;  Corpman  v.  Baccastrow,  3  Norris 
363 ;  Campbell  v.  Dearborn,  109  Mass. 
130;  Sweet  v.  Parker,  7  C.  E.  Green  (22 
N.  J.  Eq.j  453  ;  Wilson  v.  McDowell,  78 
111.  514  ;  Zuver  v.  Lyons,  40  Green  (Iowa) 
510;  O'Neill  v. 'Capelle,  62  Mo.  202  ;  Carr 
v.  Carr,  52  N.  Y.  251 ;  Villa  v.  Rodriguez, 
12  Wallace  323  ;  Morgan  v.  Shiiin,  15  Id. 
105. 


427 


OF    PERSONAL    INTERESTS    IN    REAL    ESTATE. 


money  he  has  advanced,  together  with  interest  for  the  loan ;  the  equity 
of  redemption  which  belongs  to  the  mortgagor  renders  the  interest  of 
the  mortgagee  merely  of  a  personal  nature,  namely,  a  security  for  so 
much  money.  At  law,  the  mortgagee  is  absolutely  entitled;  and  the 
estate  mortgaged  may  be  devised  by  his  will,(p)  or,  if  he  should  die  in- 
testate, will  descend  to  his  heir  at  law ;  but  in  equity  he  has  a  security 
only  for  the  payment  of  money,  the  right  to  which  will,  in  common  with 
his  other  personal  estate,  devolve  on  his  executors  or  administrators,  for 
whom  his  devisee  or  heir  will  be  a  trustee  ;  and  when  they  are  paid,  such 
devisee  or  heir  will  be  obliged  by  the  court,  without  receiving  a  sixpence 
for  himself,  to  reconvey  the  estate  to  the  mortgagor.1  And,  as  we  shall 
presently  see,  the  executors  or  administrators  of  the  mortgagee  are  now 
empowered  to  reconvey  on  payment  of  all  sums  secured  by  the  mort- 
gage. 


Indulgent,  however,  as  the  court  has  shown  itself  to  the  debtor, 
it  will  not  allow  him  forever  to  deprive  the  mortgagee,  his  creditor, 
of  the  money  which  is  his  due;2  and  if  the  mortgagor  will  not  repay 
him  within  a  reasonable   time,  equity  will    allow  the  mortgagee  for- 

(p)  See  1  Jarm.  Wills,  638,  1st  ed. ;  591,  2d  ed. ;  654,  3d  ed. 


1  For,  as  Lord  Nottingham  said,  the 
money  first  came  from  the  personal  estate, 
and  the  mortgagee's  right  to  the  land  was 
only  as  a  security  for  the  money,  Thorn- 
borough  v.  Baker,  3  Swanston  628 ;  and 
although  ejectment  can  be  brought  by  the 
heir  of  the  mortgagee,  he  will,  however, 
hold  the  property,  when  recovered,  in 
trust,  first,  for  the  executors  of  his  ances- 
tor, and  secondly,  subject  to  their  interest, 
in  trust  for  the  mortgagor:  Van  Duyne  v. 
Thayer,  14  Wendell  236. 

It  is  familiar  that  statutes  providing  for 
the  registry  of  deeds  and  mortgages  are  in 
force  in  all  of  the  United  States,  and  in  the 
case  of  mortgages,  the  priority  of  their 
lien  upon  the  estate  of  the  mortgagor  is 
regulated,  as  a  general  rule,  by  the  date 
of  registration,  with  the  exception,  in 
Pennsylvania,  and  it  may  be  some  other 
States,  of  mortgages  given  for  the  purchase- 
money  of  land,  which  may  be  recorded 
within  sixty  days  from  their  execution : 
Act  of  28th  March,  1820,  \  1,  Purdon's  Dig. 
478.     Upon  the  subject  of  the  notice  to  a 


purchaser,  arising  from  the  registry  of  a 
mortgage,  the  student  is  referred  to  Mr. 
Hare's  note  to  the  well-known  case  of  Le 
Neve  v.  Le  Neve,  2  Lead.  Cas.  in  Equity 
127,  3d  Am.  ed.  [4th  Am.  ed.  p.  144].  See 
also,  upon  the  general  subject  of  registra- 
tion, 4  Kent's  Com.  168  et  seq.  R. 

2  Before  proceeding  to  consider  the 
remedy  which  equity  gives  to  a  mortgagee 
to  enforce  payment  of  the  mortgage-debt, 
it  may  be  here  noticed  that  equity  will  in- 
terfere by  injunction  to  prevent  the  com- 
mission of  waste  upon  the  mortgaged 
premises,  whether  by  the  mortgagee  in 
possession,  for  the  land  is  only  a  security 
for  the  debt,  which,  subject  to  it,  is  re- 
garded as  the  land  of  the  mortgagor : 
Smith  v.  Moore,  11  New  Hamp.  55;  Raw- 
lings  v.  Stewart,  1  Bland  22 ;  Irwin  v. 
Davidson,  3  Iredell's  Eq.  311;  or  by  the 
mortgagor,  for  the  latter  may  not  do  any 
act  to  lessen  the  security,  of  the  mortgagee: 
Farrant  v.  Lovell,  3  Atkins  723  ;  Brady  v. 
Waldron,  2  Johns.  Ch.  148 ;  Salmon  v. 
Claggett,  3  Bland  126.  R. 


OF   A   MORTGAGE    DEBT.  427 


ever  to  retain  the  estate  to  which  he  is  already  entitled  at  law.     For  this 
purpose  it  will  be  necessary  for  the  mortgagee  to  bring  an  action  of 
foreclosure  against  the  mortgagor  in  the  Chancery  Division  of  the  High 
Court,  claiming  that  an  account  may  be  taken  of  the  principal  and  inte- 
rest due  to  him,  and  that  the  mortgagor  may  be  directed  to  pay  the  same, 
with  costs,  by  a  day  to  be  Appointed  by  the  court,  and  that  in    j-*428] 
default  thereof  he  may  be  foreclosed  his  equity  of  redemption. 
A  day  is  then  fixed  by  the  court  for  payment ;  which  day,  however,  may, 
on  the  application  of  the  mortgagor,  good  reason  being  sh<wn,fo)  be 
postponed  for  a  time.     Or,  if  the  mortgagor  should  be  ready  to  make 
repayment  before  the  cause  is  brought  to  a  hearing,  he  may  do  so  at 
any  time  previously,  on  making  proper  application  to  the  court   admit- 
ting the  title  of  the  mortgagee  to  the  money  and  mterest.(r)     It,  how- 
ever, on  the  day  ultimately  fixed  by  the  court,  the  money  should  not  be 
forthcoming,  the  debtor  will  then  be  absolutely  deprived  of  all  right  to 
any  further  assistance  from  the  court;   in  other  words,  his  equity  of 
redemption  will  be  foreclosed,  and  the  mortgagee  will  be  allowed  to  keep, 
without  further  hindrance,  the  estate  which  was  conveyed  to  him  when 
the  mortgage  was  first  made.     By  the  act  to  amend  the  practice  and 
course  of  proceeding  in  the  Court  of  Chancery,  the  court  is  empowered, 
in  any  suit  for  foreclosure,  to  direct  a  sale  of  the  property,  at  the  request 
'  of  either  party,  instead  of  a  foreclosure.(s)1     And  the  equitable  junsdic- 

(q)  Nanny  v.  Edwards,  4  Russ.  124 ;  Eyre  v.  Hanson,  2  Beav.  478. 

(r)  Stat.  7  Geo.  II.  c.  20,  s.  2.  • 

(.)  Stat.  15  &  16  Vict.  c.  86,  s.  48  ;  Hurst  v.  Hurst,  16  Beav.  374 ;  Newman  v.  Selfe, 

33  Beav.  522.  

i   This  remedy  by  foreclosure,  whereby,  divided  into  four  principal  classes :   first 

on   default  of  payment  at  the   appointed  by  proceedings  in   equity,  such   as  have 

dav   the  mortgagor  loses  his  equity  of  re-  been  referred  to  in  the  text;   secondly,  by 

demption,  is  termed  strict  foreclosure.     Its  sale  under  a  power  for  that  purpose ;  and 

severity  is,    in   England,    practically   de-  thirdly  and  fourthly,  by  entry,  either  with 

stroyed  by  the  provisions   of  the  recent  or  without  process  of  law,  as  regulated  by 

statute  referred  to   in  the  text,  whereby  local  statutes.    In  Pennsylvania,  the  rem- 

either  party   can   procure   a   sale   of  the  edy  upon   a  mortgage  is  regulated  by  a 

mortgaged  property.     But  until  that  stat-  statute  passed  as  early  as  1705,  by  which, 

ute  the  mortgagee  had  it  in  his  power  to  at  the  expiration  of  twelve  months  after 

obtain  the  absolute  title  to  the  premises,  default  has  been  made  by  the  mortgagor, 

and  such  is  still  the  case  in  a  very  few  of  the  mortgagee  can  sue  out  a  writ  of  scire 

our  own  States,  where  the  English  prac-  facias,  requiring  the  sheriff  to  make  known 

tice  still  subsists  :  Johnson  v.  Donnell,  15  to  the  mortgagor,  his  heirs  or  executors,  to 

Illinois    97.      See   passim,    2    Greenleafs  appear  and  show  cause  why  the  mortgaged 

Cruise    197;    4   Kent's   Com.  181.      It   is  premises  should  not  be  taken  in  execution 

there   shown  that   the  remedies  upon   a  for  payment  of  the  debt,  and,  upon  judg- 

mortgage  may,  in  the  United  States,  be  ment  being  entered  in  favor  of  the  mort- 


428  OF    PERSONAL    INTERESTS    IN    REAL   ESTATE. 

tion  of  the  court  is  now  extended  to  the  county  courts  with  respect  to 
all  sums  not  exceeding  five  hundred  pounds. (t) 

In  addition  to  the  remedy  by  foreclosure,  which,  it  will  be  perceived, 
involves  the  necessity  of  an  action  in  the  Chancery  Division  of  the  High 
Court,  a  more  simple  and  less  expensive  remedy  is  now  usually  provided 
in  mortgage  transactions ;  this  is  nothing  more  than  a  power  given  by 
r*49cn  ^e  mortgaSe  deed  to  the  mortgagee,  *without  further  authority, 
-1  to  sell  the  premises  in  case  default  should  be  made  in  payment. 
When  such  a  power  is  exercised,  the  mortgagee,  having  the  whole  estate 
in  fee  simple  at  law,  is  of  course  able  to  convey  the  same  estate  to  the 
purchaser ;  and,  as  this  remedy  would  be  ineffectual  if  the  concurrence 
of  the  mortgagor  were  necessary,  it  has  been  decided  that  his  concur- 
rence cannot  be  required  by  the  purchaser.(w)  The  mortgagee,  there- 
fore, is  at  any  time  able  to  sell;  but,  having  sold,  he  has  no  further  right 
to  the  money  produced  by  the  sale  than  he  had  to  the  lands  before  they 
were  sold.  He  is  at  liberty  to  retain  to  himself  his  principal,  interest, 
and  costs ;  and,  having  done  this,  the  surplus,  if  any,  must  be  paid  over 
to  the  mortgagor.  And,  by  a  recent  act  of  parliament,^)  a  power  of 
sale,  a  power  to  insure  against  fire,  and  a  power  to  require  the  appoint- 
ment of  a  receiver  of  the  rents,  or  in  default  to  appoint  any  person  as 
such  receiver,  have  been  rendered  incident  to  every  mortgage  or  charge 
by  deed  affecting  any  hereditaments  of  any  tenure.  These  powers,  how- 
ever, do  not  arise  until  after  the  expiration  of  one  year  from  the  time 
when  the  principal  money  shall  have  become  payable  according  to  the 
terms  of  the  deed,  or  after  any  interest  on  such  principal  money  shall 
have  been  in  arrear  for  six  months,  or  after  any  omission  to  pay  any 
premium  on  any  insurance,  which  by  the  terms  of  the  deed  ought  to  be 
paid  by  the  person  entitled  to 'the  property  subject  to  the  charge.  (#) 
And  no  sale  is  to  be  made  until  after  six  months'  notice  in  writing.^) 
But  none  of  these  powers  are  to  be  exercisable  if  it  be  declared  in  the 
mortgage  deed  that  they  shall  not  take  effect ;  and  where  there  is  no 

(t)  Stat.  28  &  29  Vict.  c.  99,  amended  by  stat.  30  &  31  Vict.  c.  142. 
(u)  Corder  v.  Morgan,  18  Ves.  344;   Clay  v.  Sharpe,  Sugd.  Vend.  &  Pur.  Appendix 
No.  XIII.  p.  1096,  11th  ed. 

(x)  Stat.  23  &  24  Vict.  c.  145,  part  2. 

(y)  Sect.  11.  (Z)  Sect.  13. 


gagee,  a  writ  of  levari  facias  issues,  whereby  ceeds  of  which  are  afterwards  applied  to 

the   sheriff,  without  further  process,   ex-  the   payment  of  liens  and   incumbrances, 

poses  the  premises,  after  advertisement  for  according  to  their  legal  priority.  R. 

a  certain  period,  to  public  sale,  the  pro- 


OF    A    MORTGAGE    DEBT.  429 

such  declaration,  then  if  any  variations  or  limitations  of  any  of  the  powers 
are  Contained  in  the  deed,  such  powers  shall  be  exercisable  only  r*4on-i 
subject  to  such  variations  or  limitations. (a) 

If,  after  the  day  fixed  for  the  payment  of  the  money  is  passed,  the 
mortgagor  should  wish  to  pay  off  the  mortgage,  he  must  give  to  the  mort- 
gagee six  calendar  months'  previous  notice  in  writing  of  his  intention  so 
to  do,  and  must  then  punctually  pay  or  tender  the  money  at  the  expira- 
tion of  the  notice  ;(b)  for  if  the  money  should  not  be  then  ready  to  be 
paid,  the  mortgagee  will  be  entitled  to  fresh  notice ;  as  it  is  only  reason- 
able that  he  should  have  time  afforded  him  to  look  out  for  a  fresh  security 
for  his  money. 

Mortgages  of  freehold  lands  are  sometimes  made  for  long  terms,  such 
as  1000  years.  But  this  is  not  now  often  the  case,  as  the  fee  simple  is 
more  valuable,  and  therefore  preferred  as  a  security.  Mortgages  for 
long  terms,  when  they  occur,  are  usually  made  by  trustees,  in  whom  the 
terms  have  been  vested  in  trust  to  raise,  by  mortgage,  money  for  the 
portions  of  the  younger  children  of  a  family,  or  other  similar  purposes. 
The  reasons  for  vesting  such  terms  in  trustees  for  these  purposes  were 
explained  in  the  last  chapter. (c) 

Copyhold  as  well  as  freehold  lands  may  be  the  subjects  of  mortgage. 
The  purchase  of  copyholds,  it  will  be  remembered,  is  effected  by  a  sur- 
render of  the  lands  from  the  vendor  into  the  hands  of  the  lord  of  the 
manor,  to  the  use  of  the  purchaser,  followed  by  the  admittance  of  the 
latter  as  tenant  of  the  lord.(d)  The  mortgage  of  copyholds  is  effected 
by  surrender,  in  a  similar  manner,  from  the  mortgagor  to  the  use  of  the 
mortgagee  and  his  heirs,  subject  to  a  condition  that  on  *pay-  r*j.o-|-i 
ment  by  the  mortgagor  to  the  mortgagee  of  the  money  lent,  to- 
gether with  interest,  on  a  given  day,  the  surrender  shall  be  void.  If  the 
money  should  be  duly  paid  on  the  day  fixed,  the  surrender  will  be  void 
accordingly,  and  the  mortgagor  will  continue  entitled  to  his  old  estate  ; 
but  if  the  money  should  not  be  duly  paid  on  that  day,  the  mortgagee  will 
then  acquire  at  law  an  absolute  right  to  be  admitted  to  the  customary 
estate  which  was  surrendered  to  him ;  subject  nevertheless  to  the  equi- 
table right  of  the  mortgagor,  confining  the  actual  benefit  derived  by  the 
former  to  his  principal  money,  interest,  and  costs.    The  mortgagee,  how- 

(a)  Sect.  32;  see  ante,  p.  309. 

(6)  Shrapnell  v.  Blake,  2  Eq.  Ca.  Abr.  603,  pi.  34. 
(c)  See  ante,  p   410.  (d)  Ante,  pp.  374,  375. 

25 


431  OF    PERSONAL    INTERESTS    IN    REAL    ESTATE. 

ever,  is  seldom  admitted,  unless  he  should  wish  to  enforce  his  security, 
contenting  himself  with  the  right  to  admittance  conferred  upon  him  by 
the  surrender;  and,  if  the  money  should  be  paid  off,  all  that  will  then 
be  necessary  will  be  to  procure  the  steward  to  insert  on  the  court  rolls  a 
memorandum  of  acknowledgment,  by  the  mortgagee,  of  satisfaction  of 
the  principal  money  and  interest  secured  by  the  surrender.(e)  If  the 
mortgagee  should  have  been  admitted  tenant,  he  must  of  course,  on  repay- 
ment, surrender  to  the  use  of  the  mortgagor,  who  will  then  be  readmitted. 
It  is  now  provided  by  the  Vendor  and  Purchaser  Act,  1874,(/)  that  the 
legal  personal  representative,  that  is,  the  executors  or  administrators,  of 
a  mortgagee  of  a  freehold  estate,  or  of  a  copyhold  estate,  to  which  the 
mortgagee  shall  have  been  admitted,  may,  on  payment  of  all  sums  secured 
by  the  mortgage,  convey  or  surrender  the  mortgaged  estate,  whether  the 
mortgage  be  in  form  an  assurance,  subject  to  redemption,  or  an  assurance 
upon  trust.  Before  this  enactment,  in  case  of  the  death  of  the  mortgagee 
his  heir  or  the  devisee  under  his  will  had  to  reconvey  the  legal  estate,  on 
payment  of  the  mortgage  debt  and  interest  to  the  legal  personal  repre- 
sentative of  the  mortgagee. 

r*4.^1  ""Leasehold  estates  also  frequently  form  the  subjects  of  mort- 
gage. The  term  of  years  of  which  the  estate  consists  is  assigned 
by  the  mortgagor  to  the  mortgagee,  subject  to  a  proviso  for  redemption 
or  reassignment  on  payment,  on  a  given  day,  by  the  mortgagor  to  the 
mortgagee,  of  the  sum  of  money  advanced,  with  interest ;  and  with  a 
further  proviso  for  the  quiet  enjoyment  of  the  premises  by  the  mortgagor 
until  default  shall  be  made  in  payment.  The  principles  of  equity  as  to 
redemption  apply  equally  to  such  a  mortgage,  as  to  a  mortgage  of  free- 
holds ;  but,  as  the  security,  being  a  term,  is  always  wearing  out,  payment 
will  not  be  permitted  to  be  so  long  deferred.  A  power  of  sale  also  is 
frequently  inserted  in  a  mortgage  of  leaseholds,  and  the  statutory  powers 
given  by  the  act  already  referred  to(</)  extend  also  to  leaseholds.  From 
what  has  been  said  in  the  last  chapter, (7i)  it  will  appear  that,  as  the 
mortgagee  is  an  assignee  of  the  term,  he  will  be  liable  to  the  landlord, 
during  the  continuance  of  the  mortgage,  for  the  payment  of  the  rent  and 
the  performance  of  the  covenants  of  the  lease;  against  this  liability  the 
covenant  of  the  mortgagor  is  his  only  security.  In  order,  therefore,  to 
obviate  this  liability,  when  the  rent  or  covenants  are  onerous,  mortgages 
of  leaseholds  are  frequently  made  by  way  of  demise  or  underlease ;   the 

(e)  1  Scrip.  Cop.  242;  1  Watk.  Cop.  117,  118.  (/)  Stat.  37  &  38  Vict.  c.  78,  s.  4. 

(ff)  Ante,  p.  429.  (A)  Ante,  p.  396. 


OF    A    MORTGAGE    DEBT. 


432 


mort^ee  by  this  means  becomes  the  tenant  only  of  the  mortgagor,  and 
consequently  a  mere  stranger  with  regard  to  the  landlord.^)  The 
security  of  the  mortgagee  in  this  case  is  obviously  not  the  whole  term 
of  the  mortgagor,  but  only  the  new  and  derivative  term  created  by  the 
mortgage. 

In  some  cases  the  exigency  of  the  circumstances  will  not  admit  of  time 
to  prepare  a  regular  mortgage  ;  a  deposit  of  the  title  deeds  is  then  made 
with  the  ^mortgagee;  and  notwithstanding  the  stringent  previa- 
ion  of  the  Statute  of  Frauds  to  the  contrary,!*)  it  was  held  by 
the  Court  of  Chancery  that  such  a  deposit,  even  without  any  writing, 
operated  as  an  equitable  mortgage  of  the  estate  of  the  mortgagor  in  the 
lands  comprised  in  the  deeds.(Z)1  This  doctrine  still  remains ;  and  the 
same  doctrine  applies  to  copies  of  court  roll  relating  to  copyhold  lands,(ro) 
for  such  copies  are  the  title  deeds  of  copyholders. 

,.v  a  ,    ~   a^  (k)  29  Car.  II.  c.  3,  ss.  1,  3 ;  ante,  p.  151. 

)  IZ^Zln,  1  Bro.  C.  C.  26,  (  L  Ex  parte  uff,  n  Ve,  ^ 
\n)  Whitbread  v.  Jordan,  1  You.  &  Coll.  303;  Lewis  v   John   1  C.  P.  Coop.  8      See, 
however,  Sugd.  Vend.  &  Pur.  630,  13th  ed.  ;  Jones  v.  Smith,  1  Hare  56  ;   1  Phill.  244. 

actually  administered  :  though  in  several 
cases  it  has  been  adverted  to,  as  a  rule  of 
law,  in  England."     2  Greenl.  Cruise,  69  n. 
It  has  certainly  been   denied   to   exist  in 
Pennsylvania :  Bowers  v.  Oyster,  3  Penna. 
Rep.  239  ;  Shitz  v.  Dieffenbach,  3  Barr  233, 
as  it  has  also  in  Kentucky :  Vanmeter  v. 
M'Fadden,  8  B.  Monroe  437;    [in  Minne- 
sota:   Gardner  v.  McClure,  6  Minn.  250; 
and   in  Bicknell  v.  Bicknell,  31  Vermont 
498,  Poland,  J.,  stated  the  question  with  a 
strong  leaning  against  the  validity  of  such 
mortgage,  though  the  point  was  not  actu- 
ally decided.    M.].     But  in  New  York,  the 
principle  was  acted  on :  Rockwell  v.  Hobby, 
2  Sanford  9;  as  also  in  Mississippi:  Wil- 
liams v.  Stratton,  10  Smedes  &  Marsh.  418  ; 
[in  South  Carolina  the  principle  was  cited 
in  an  analogous  case,  with  apparent  ap- 
proval:  Welsh  v.  Usher,  2  Hill's  Ch.  Rep. 
170;   and  in  Wisconsin  it  seems  to  have 
been  recognized  in  Jarvis  v.  Dutcher,  16 
Wis.  307,  though  the  case  is  one  depending 
.much  on  local  statutes  in  relation  to  cer- 
tificates of  school  lands,  &c.     M.].      R. 


i  It  being  considered  that  the  deposit  is 
evidence  of  an  agreement  to  make  a  mort- 
gage,  which   equity  will   enforce   against 
the    mortgagor,    and    all    claiming    under 
him,  with   notice  of  the  deposit;    but  as 
against   strangers,   it   can    only   occur   in 
cases   where    the    possession   of  the    title 
deeds   can  be   accounted  for  in  no   other 
manner  except  from  their  having  been  de- 
posited by  way  of  equitable  mortgage,  or 
the  holder  being  otherwise  a  stranger  to 
the  title  and  the  lands:  Boyer  v.  Williams, 
3  You.  &  Jerv.  150;  Berry  v.  Mutual  Ins. 
Co.,  2  Johns.  Ch.  608.     Russell  v.  Russell, 
cited  above,  is  the  leading   case  on  this 
subject,  and  has  repeatedly  been  strongly 
disapproved,  particularly  by  Lord   Eldon 
(see  Ex  parte  Coming,  9  Ves.   115);  and 
the  doctrine,  though  clearly  recognized,  is 
limited   as   far  as   possible.     It  has  been 
considered,  however,  that  the  English  law 
as  to  an  equitable  mortgage  being  created 
by  deposit  of  the  title  deeds  has  not  been 
adopted  in  this  country  :  Kent's  Com.  151 ; 
and  Mr.  Greenleaf  says  broadly,  "  No  case 
is  found  in  which  this  doctrine  has  been 


433 


OF  PERSONAL  INTERESTS  IN  REAL  ESTATE. 


When  lands  are  sold,  but  the  whole  of  the  purchase-money  is  not  paid 
to  the  vendor,  he  has  a  lien  in  equity  on  the  lands  for  the  amount  un- 
paid, together  with  interest  at  four  per  cent.,  the  usual  rate  allowed  in 
equity. (n)1  And  the  circumstance  of  the  vendor  having  taken  from  the 
purchaser  a  bond  or  a  note  for  the  payment  of  the  money  will  not  de- 
stroy the  lien.(o)  But  if  the  vendor  take  a  mortgage  of  part  of  the 
estate,  or  any  other  independent  security,  his  lien  will  be  gone.2     If  the 

(n)  Chapman  v.  Tanner,  1  Vern.  267  ;  Pollexfen  v.  Moore,  3  Atk.  272  ;  Mackretli   v. 
Symmons,  15  Ves.  328  ;  Sugd.  Vend.  &  Pur.  552,  13th  ed. 

(o)  Grant  v.  Mills,  2  Ves.  &  Beav.  306  ;   Winter  v.  Lord  Anson,  3  Russ.  488. 

existence  remains  undecided  and  doubtful : 
Atwood  v.  Vincent,  17  Connecticut  576, 
583  ;  Hutchins  et  al.  v.  Olcutt,  4  Vermont 
549,  552  ;  Budd  et  al.  v.  Busti  &  Vander- 
kemp,  1  Harrington  69,  74.  In  several  of 
the  courts  in  which  its  existence  has  been 
recognized,  it  has  been  considered  as  a 
dangerous  principle,  and  one  opposed  to 
the  prevailing  policy  of  this  country,  which 
discourages  secret  liens,  and  tends  to  make 
all  matters  of  title  the  subject  of  record 
evidence.  See  the  remarks  of  Marshall,  C. 
J.,  in  Bayley  v.  Greenleaf,  7  Wheaton  46, 
51  ;  of  Carr,  J.,  in  Moore  et  al.  v.  Holcombe 
et  al.,  3  Leigh  597,  60o'  601  ;  of  Tucker,  P., 
in  Brawley  v.  Catran,  &c,  8  Id.  522,  527  ; 
and  of  Treat,  J.,  in  Conover  v.  Warren  et 
al.,  1  Gilman  498,  502."  R. 

2  The  English  law  upon  this  point  seems 
to  depend  much  upon  the  circumstances  of 
each  case,  as  to  whether  it  is  to  be  inferred 
that  the  lien  was  intended  to  be  reserved, 
or  that  credit  was  exclusively  given  to  the 
person  from  whom  the  security  was  taken, 
and  hence  Lord  Eldon  observed,  in  Mack- 
reth  v.  Symmons,  cited  supra,  "  that  it 
would  have  been  better  at  once  to  have 
held  that  the  lien  should  exist  in  no  case, 
and  the  vendor  should  suffer  the  conse- 
quences of  his  want  of  caution,  or  to  have 
laid  down  the  rule  the  other  way  so  dis- 
tinctly that  a  purchaser  might  be  able  to 
know,  without  the  judgment  of  a  court,  in 
what  cases  it  would  and  in  what  cases  it 
would  not  exist."  In  the  note  cited  supra, 
it  is  said,  "  In  regard  to  the  effect  upon 
this  equitable  lien  of  the  vendor's  taking  a 
securitv,  the  American  cases  agree  in  es- 


1  The  student  will  find  a  valuable  note 
upon  this  subject,  by  the  late  Mr.  Wallace, 
in  1  Leading  Cases  in  Equity  362,  3d  Am. 
ed.  (note  to  Mackreth  v.  Syrnmons),  [4th 
Am.  ed.  p.  481],  where  he  premises,  "  The 
English  Chancer}'  doctrine  of  the  ven- 
dor's equitable  lien  for  unpaid  purchase- 
money,  upon  an  absolute  conveyance  of 
land,  is  adopted  in  several  of  the  States 
of  this  country,  viz.  :  New  York,  Mary- 
land, Virginia,  Tennessee,  Mississippi, 
Georgia,  Alabama,  Missouri,  Illinois,  In- 
diana, Ohio,  Kentucky,  New  Jersey, 
California,  Vermont,  and  Texas,  and  has 
been  recognized  in  the  Circuit  and  Su- 
preme Courts  of  the  United  States  (Sie- 
man  v.  Brown  et  al.,  1  Mason  192,  212; 
s.  c.  4  Wheaton  256  ;  Bayley  v.  Greenleaf, 
7  Wheaton  46).  In  some  other  States  it 
has  been  condemned  and  abandoned.  In 
Pennsylvania  the  whole  principle  has  been 
rejected ;  a  vendor,  after  an  absolute  con- 
veyance of  the  legal  title,  has  no  implied 
lien  for  the  purchase-money  :  Kauffelt  v. 
Bower,  7  Sergeant  &  Rawle  64 ;  Semple  v. 
Burd,  Id.  286  ;  Megargel  v.  Saul,  3  Whar- 
ton 19;  Hepburn  v.  Snyder,  3  Barr  72,  78. 
In  North  Carolina,  after  some  fluctuation 
of  opinion,  the  doctrine  of  an  implied  lien 
after  an  absolute  conveyance  is  now  en- 
tirely expelled  :  Womble  v.  Balth,  1  Ire- 
dell's Eq.  346.  In  South  Carolina,  also,  it 
appears  to  be  completely  rejected  :  Wragg's 
Representatives  v.  Comp.  Gen.  and  others, 
2  Dessaussure  509,  520.  In  Massachusetts 
it  has  no  existence  ;  per  Story,  J.,  in  Gil- 
man  v.  Brown  et  al.,  1  Mason  192,  219.  In 
Connecticut,  Vermont,  and  Delaware,  its 


OF    A    MORTGAGE    DEBT. 


433 


sale  be  made  in  consideration  of  an  annuity,  it  appears  that  a  lien  will 
subsist  for  such  annuity,(p)  unless  a  contrary  intention  can  be  inferred 
from  the  nature  of  the  transaction. (q) 


[*434] 


A  curious  illustration  of  the  anxiety  of  the  Court  of  Chancery  to  pre- 
vent any  imposition  being  practiced  *by  the  mortgagee  upon  the 
mortgagor  occurs  in  the  following  doctrine:  that,  if  money  be 
lent  at  a  given  rate  of  interest,  with  a  stipulation  that,  on  failure  of  punc- 
tual payment,  such  rate  shall  be  increased,  this  stipulation  is  held  to  be 
void,  as  too  great  a  hardship  on  the  mortgagor :  whereas  the  very  same 
effect  maybe  effectually  accomplished  by  other  words.  If  the  stipulation 
be  that  the  higher  rate  shall  be  paid,  but  on  punctual  payment  a  lower 
rate  of  interest  shall  be  accepted,  such  a  stipulation,  being  for  the  benefit 
of  the  mortgagor,  is  valid,  and  will  be  allowed  to  be  enforced. (r)  The 
highest  rate  of  interest  which  could  be  taken  upon  the  mortgage  of  any 
lands,  tenements,  or  hereditaments,  or  any  estate  or  interest  therein,  was 

(p)  Matthew  v.  Bowler,  6  Hare  110 

(q)  Buckland  v.  Pocknell,  13  Sim.  496;  Dixon  v.   Gayfere,  21  Beav.  118  ;   1  De  Gex 
&  Jones  655. 

(•/•)  3  Burr.  1374  ;   1  Fonb.  Eq.  398. 


tablishing  and  applying  the  following  sim- 
ple and  satisfactory  rule  :  that  the  implied 
lien  will  be  sustained  wherever  the  vendor 
has  taken  the  personal  security  of  the  ven- 
dee only,  by  whatever  kind  of  instrument 
it  be  manifested,  and  therefore  that  any 
bond,  note,  or  covenant,  given  by  the  ven- 
dee alone,  will  be  considered  as  intended 
only  to  countervail  the  receipt  for  the  pur- 
chase-money contained  in  the  deed,  or  to 
show  the  time  or  manner  in  which  the 
payment  is  to  be  made,  unless  there  is  an 
express  agreement  between  the  parties  to 
waive  the  equitable  lien  ;  and  on  the  other 
hand,  that  the  lien  will  be  considered  as 
waived  whenever  any  distinct  and  inde- 
pendent security  is  taken,  whether  by 
mortgage  of  other  land,  or  pledge  of  goods, 
or  personal  responsibility  of  a  third  person, 
and  also  when  a  security  is  taken  upon 
the  land,  either  for  the  whole  or  a  part  of 
the  unpaid  purchase-money,  unless  there 
is  an  express  agreement  that  the  implied 
lien  shall  be  retained.  ...  It  may  ac- 
cordingly be  considered  as  settled,  by  the 


unanimous  concurrence  of  the  cases  in 
this  country,  that,  wherever  this  lien  is 
recognized  at  all,  it  will  not  be  affected 
by  the  vendor's  taking  the  bond,  or  bill 
single,  of  the  vendee  ;  or  his  negotiable 
promissory  note  ;  or  a  check  drawn  on  a 
bank  by  the  vendee,  which  is  not  pre- 
sented or  paid;  or  any  instrument  what- 
ever, involving  merely  the  personal  lia- 
bility of  the  vendee  ;  but  that  taking  of  a 
mortgage  of  other  property,  or  the  bond 
or  note  of  the  vendee  with  a  surety;  or  a 
negotiable  note  drawn  by  the  vendee  and 
endorsed  by  a  third  person ;  or  drawn  by 
a  third  person  and  endorsed  by  the  vendee, 
will  repel  the  lien  presumptively  ;  and  in 
like  manner,  an  express  security  on  the 
land  itself  for  the  whole  amount  unpaid, 
as  by  mortgage  or  deed  of  trust,  will 
merge  the  implied  lien  ;  and  an  express 
security,  or  an  express  contract  for  a  lien 
on  the  land  qonveyed,  as  to  part  of  the 
amount  remaining  unpaid,  will  be  an 
implied  waiver  of  the  lien  to  any  greater 
extent."  R. 


434  OF    PERSONAL    INTERESTS    IN    REAL    ESTATE. 

formerly  57.  per  cent,  per  annum  ;  and  all  contracts  and  assurances, 
whereby  a  greater  rate  of  interest  was  reserved  or  taken  on  any  such 
security,  were  deemed  to  have  been  made  or  executed  for  an  illegal  con- 
sideration.^) By  a  modern  statute,(£)  the  previous  restriction  of  the 
interest  of  all  loans  to  5/.  per  cent,  was  removed,  with  respect  to  con- 
tracts for  the  loan  or  forbearance  of  money  above  the  sum  of  10Z.  ster- 
ling ;  but  loans  upon  the  security  of  any  lands,  tenements,  or  heredita- 
ments, or  any  estate  or  interest  therein,  were  expressly  excepted. (u) 
But,  by  an  act  of  parliament  passed  on  the  10th  of  August,  1854,(:c) 
all  the  laws  against  usury  were  repealed  ;  so  that,  now,  any  rate  of 
interest  may  be  taken  on  a  mortgage  of  lands  which  the  mortgagor  is 
willing  to  pay. 

The  loan  of  money  on  mortgage  is  an  investment  frequently  resorted 
r*43n  to  ^7  trustees,  when  authorized  by  "'their  trust  to  make  such  use 
J  of  the  money  committed  to  their  care:  in  such  a  case,  the  fact 
that  they  are  trustees,  and  the  nature  of  their  trust,  are  usually  omitted 
in  the  mortgage  deed,  in  order  that  the  title  of  the  mortgagor  or  his 
representatives  may  not  be  affected  by  the  trusts.1  It  is,  however,  a 
rule  of  equity  that  when  money  is  advanced  by  more  persons  than  one, 
it  shall  be  deemed,  unless  the  contrary  be  expressed,  to  have  been  lent 
in  equal  shares  by  each  ;(«/)  if  this  were  the  case,  the  executor  or  admin- 
istrator of  any  one  of  the  parties  would,  on  his  decease,  be  entitled  to 
receive  his  share. (2)  In  order,  therefore,  to  prevent  the  application  of 
this  rule,  it  is  usual  to  declare,  in  all  mortgages  made  to  trustees,  that 
the  money  is  advanced  by  them  on  a  joint  account,  and  that,  in  case  of 

(s)  Stat.  12  Anne,  st.  2,  c.  16  ;  5  &  6  Will.  IV.  c.  41  ;  2  &  3  Vict.  c.  37  ;  Thibault  v. 
Gibson,  12  Mee.  &  Wels.  88  ;  Hodgkinson  v.  Wyatt,  4  Q.  B.  749  (E.  C.  L.  R.  vol.  45). 

(t)  2  &  3  Vict.  c.  37,  continued  by  stat.  13  &  14  Vict.  c.  56. 

(u)  See  Follett  v.  Moore,  4  Ex.  Rep.  410. 

(x)  Stat.  17  &  18  Vict.  c.  90. 

\y)  3  Atk.  734;  2  Ves.  sen.  258;  3  Ves.  jun.  631. 

(z)  Petty  v.  Styward,  1  Cha.  Rep.  57  ;  1  Eq.  Ca.  Ab.  290  ;  Vickers  v.  Cowell,  1 
Beav.  529. 

1  On  tbis  side  of  the  Atlantic,  the  former  trustee's  violation  of  duty.  See  the  note 
English  law  as  to  the  obligation  of  a  pur-  to  Elliott  v.  Merryman,  1  Lead.  Cas.  in 
chaser  to  see  to  the  application  of  the  Eq.  97,  3d  Am.  ed.  [4th  Am.  ed.  p.  109]. 
purchase-money  [now  changed,  see  post,  And  in  England,  where  the  trust  has  been 
452]  has  met  with  little  favor,  except  to  reinvest,  it  has  always  been  considered 
where  the  sale  is  a  breach  of  trust  on  the  sufficient  for  the  purchaser  to  see  the  re- 
part  of  the  trustee,  and  the  purchaser  has,  investment  actually  made,  without  incur- 
either  from  the  fact  of  the  transaction  itself  ring  liability  as  to  its  possible  future 
or   aliunde,   notice    or   knowledge    of   the  misapplication.     2  Sugd.  Vend.  37.      R. 


OF    A   MORTGAGE    DEBT:  435 

the  decease  of  any  of  them  in  the  lifetime  of  the  others,  the  receipts  of 
the  survivors  or  survivor  shall  be  an  effectual  discharge  for  the  whole  of 
the  money. 

We  have  already  defined  a  mortgage  debt  as  an  interest  in  land  of  a 
personal  nature  ;(a)  and  in  accordance  with  this  view,  it  was  held  that 
judgment  debts  against  the  mortgagee  were  a  charge  upon  his  interest 
in  the  mortgaged  lands. (b)1  But  it  was  afterwards  provided(e)  that 
where  any  mortgage  should  have  been  paid  off  prior  to,  or  at  the  time 
of,  the  conveyance  of  the  lands  to  a  purchaser  or  mortgagee  for  valuable 
consideration,  the  lands  should  be  discharged  both  from  the  judgment 
and  crown  debts  of  the  mortgagee.  And  by  a  still  more  recent  statute, 
to  which  we  have  already  referred, (d  )  the  *lien  of  all  judgments, 
of  a  date  later  than  the  29th  of  July,  1864,  has  been  abolished.    ■-         -• 

Mortgages  are  frequently  transferred  from  one  person  to  another. 
The  mortgagee  may  wish  to  be  paid  off,  and  another  person  may  be 
willing  to  advance  the  same  or  a  further  amount  on  the  same  security. 
In  such  a  case  the  mortgage  debt  and  interest  are  assigned  by  the  old  to 
the  new  mortgagee  ;  and  the  lands  which  form  the  security  are  conveyed, 
or  if  leasehold,  assigned,  by  the  old  to  the  new  mortgagee,  subject  to  the 
equity  of  redemption  which  may  be  subsisting  in  the  premises  ;  that  is, 
subject  to  the  right  in  equity  of  the  mortgagor  or  his  representatives  to 
redeem  the  premises  on  payment  of  the  principal  sum  secured  by  the 
mortgage,  with  all  interests  and  costs.2 

(a)  Ante,  p.  421. 

(4)  Russell  v.  M'Culloch,  V.-C.  Wood,  1  Jur.  N.  S.  1ST ;  s.  c.  1  Kay  &  J.  313. 

(c)  Stat.  IS  &  19  Vict.  c.  15,  s.  11  ;  Greaves  v.  Wilson,  Rolls,  4  Jur.  N.  S.  802  ;  s.  c. 
25  Beavan  434. 

(d)  Stat.  27  &  28  Vict.  c.  112,  ante,  p.  88. 

1  The  contrary  is  believed  to  be  the  law  10  Ohio  71 ;  Watkins  v.  Gregory,  6  Black- 
on  this  side  of  the  Atlantic,  and  certainly  ford  113  ;  Dougherty  v.  Linthicum,  8  Dana 
as  to  Pennsylvania:  Rickett  v.  Madeira,  1  194.  R. 
Rawle  329  ;  that  is  to  say,  the  interest  of  2  If  the  mortgagee  convey  the  mortgaged 
the  mortgagor  is  generally  held  liable  to  a  property  without  assigning  the  debt,  the 
levy  and  sale  under  a  judgment,  while  the  conveyance  passes  no  estate,  for  the  debt 
interest  of  the  mortgagee  cannot  be  so  cannot  reside  in  one  person  and  the  pledge 
taken  in  execution  ;  but  being  regarded  as  in  another  :  Johnson  v.  Cornett,  29  Ind. 
a  mere  chose  in  action,  can  be  proceeded  59;  4  Kent  Com.  194;  Jackson  v.  Bronson 
against  only  by  attachment :  Blanchard  v.  19  Johns.  325  •  Ayruar  v.  Bill,  5  Johns. 
Colburn,  16  Mass.  346  ;  Eaton  v.  Whiting,  Ch.  570;  Wallace  v.  Goodall,  18  N.  H. 
3  Pick.  489  ;  Glass  v.  Elison,  9  New  Hamp.  449  ;  Hinds  v.  Ballou,  49  N.  H.  621  ;  Doe 
69  ;  Farmers'  Bank  v.  Commercial  Bank,  v.  McLoskey,  1  Ala.  708  ;  Burdett  v.  Cla3r, 


436  OF  PERSONAL  INTERESTS  IN  REAL  ESTATE. 

During  the  continuance  of  a  mortgage,  the  equity  of  redemption 
which  belongs  to  the  mortgagor  is  regarded  by  the  court  as  an  estate, 
which  is  alienable  by  the  mortgagor,  and  descendible  to  his  heir,  in  the 
same  manner  as  any  other  estate  in  equity  ;(e)  the  court  in  truth  regards 
the  mortgagor  as  the  owner  of  the  same  estate  as  before,  subject  only  to 
the  mortgage.  In  the  event  of  the  decease  of  the  mortgagor,  the  land 
mortgaged  will  consequently  devolve  on  the  devisee  under  his  will,  or, 
if  he  should  have  died  intestate,  on  his  heir.  And  the  mortgage  debt, 
to  which  the  lands  are  subject,  was  formerly  payable  in  the  first  place, 
like  all  other  debts,  out  of  the  personal  estate  of  the  mortgagor. (/)  As 
in  equity  the  lands  are  only  a  security  to  the  mortgagee,  in  case  the 
mortgagor  should  not  pay  him,  so  also  in  equity  the  lands  still  devolved 
as  the  real  estate  of  the  mortgagor,  subject  only  to  be  resorted  to  for 
T*4371  *Payment  °f  the  debt,  in  the  event  of  his  personal  estate  being 
insufficient  for  the  purpose.1  But  by  an  act  of  the  present 
reign(^)  it  was  provided  that  when  any  person  should,  after  the  31st  of 
December,  1854,  die  seised  of  or  entitled  to  any  estate  or  interest  in  any 
land  or  other  hereditaments  which  should  at  the  time  of  his  death  be 
charged  with  the  payment  of  any  sum  of  money  by  way  of  mortgage, 

(e)  See  ante,  p.  161  et  seq. 

(/)  See  Yates  v.  Aston,  4  Q.  B.  182  (E.  C.  L.  R.  vol.  15)  ;  Mathew  v.  Blackmore,  1 
H.  &  N.  702  ;  Essay  on  Real  Assets,  p.  27. 

(g)  Stat.  17  &  18  Vict.  c.  113,  commonly  called  Locke  King's  Act;  see  Essay  on  Real 
Assets,  pp.  36,  106. 

8  B.  Mon.  287  ;  McGan  v.  Marshall,  7  personal  estate  of  the  ancestor  has  been 
Humph.  121;  Martin  v.  McReynolds,  6  increased  by  the  receipt  of  the  mortgage 
Mich.  73;  Hays  v.  Lewis,  17  Wis.  212.  money,  so  that  personal  estate  shall  be 
Though  it  might  be  that  the  conveyance  first  resorted  to  for  its  payment,  and  this 
could  be  construed  as  an  assignment  of  general  principle  of  equity  is  everywhere 
the  debt  as  well,  and  in  that  case  the  recognized.  1  Story's  Eq.  \  591,  &c.  In 
mortgage  would  pass:  Warden  v.  Adams,  the  case  of  a  devise,  however,  "the  pre- 
15  Mass.  233;  Crooker  v.  Jewell,  31  Me.  sumption  that  debts  chargeable  on  both 
306;  Lawrence  v.  Stratton,  6  Cush.  163;  real  and  personal  estate  are  to  be  paid  out 
Murdock  v.  Chapman,  9  Gray  156.  And  of  personalty  is  a  mere  presumption,  and 
in  equity  the  assignment  of  a  mortgage  not  a  necessary  or  inflexible  legal  prin- 
debt,  or  part  of  it,  carries  with  it  the  right  ciple.  It  is  necessarily  subject  to  the  con- 
to  be  secured  by  the  mortgage  :  Blake  v.  trol  which  the  testator  may  exert  over  all 
Williams,  36  N.  H.  39;  Donley  v.  Hayes,  his  property."  The  subject  is  one  be- 
17  S.  &  R.  400;  Betz  v.  Heebner,  1  Pen.  longing  rather  more  peculiarly  to  the  law 
&  Watts  280  ;  Batesville  Institute  v.  Kauff-  of  devises,  and  in  Mr.  Hare's  note  to  Aid- 
man,  18  Wallace  154  ;  Mellen  v.  R.  R.  Co.,  rich  v.  Cooper,  2  Lead.  Cas.  in  Eq.  217,  3d 
40  Vt.  399.  Am.  ed.  [4th  Am  ed.  255],  on  the  subject 
1  In  other  words,  the  fund  which  has  of  "  marshalling  assets,"  the  student  will 
received  the  benefit,  by  contracting  the  find  the  law  very  clearly  explained.  R. 
debt,  shall  make  satisfaction  ;   and  as  the 


OF   A    MORTGAGE    DEBT.  43< 


and  such  person  should  not,  by  his  will  or  deed  or  other  document,  have 
sianiied  any  contrary  or  other  intention,  the  heir  or  devisee,  to  whom 
S lands  oi  hereditaments  should  descend  or  be  devised   should  not  be 
entitled   to  have  the  mortgage  debt  discharged   or  satisfied  out  of  the 
personal  estate  or  any  other  real  estate  of  such  person  ;   but  the   and  or 
hereditaments  so  charged  should,  as  between  the  different  persons  claiming 
through  or  under  the  deceased  person,  be  primarily  liable  to  the  payment 
of  all  mortgage  debts  with  which  the  same  should  be  charged ;  every  part 
thereof,  according  to  its  value,  bearing  a  proportionate  part  of  the  mort- 
gage debts  charged  on  the  whole  thereof;  provided  that  nothing  therein 
contained  should  affect  or  diminish  any  right  of  the  mortgagee  to  obtain 
full  payment  of  his  mortgage  debt  either  out  of  the  personal  estate  of  the 
person  so  dying  as  aforesaid  or  otherwise;    provided  also  that  nothing 
therein  contained  should  affect  the  rights  of  any  person  claiming  under 
any  deed,  will,  or  document  made  before  the  1st  of  January,  1855.     Ins 
act   having  given  rise  to  many  doubts,  was  explained  by  another  act,(A) 
which  provided^)  that  in  the  construction  of  the  will  of  any  person  who 
might  die  after  the  31st  of  December,  1867,  a  general  direction  that  the 
debts   or  that  all  the  debts  of  the  testator,  should  be  paid  out  ot   his 
personal  estate,  should  not  be  deemed  to  be  a  declaration  of  an  intention 
contrary  to  *or  other  than  the  rule  established  by  the  act,  unless    ^^g-j 
such  contrary  or  other  intention  should  be  further  declared  by 
words  expressly  or  by  necessary  implication  referring  to  all  or  some  ot 
the  testator's  debts  or  debt  charged  by  way  of  mortgage  on  any  part  ot 
his  real  estate.     It  was  further   provided(^)  that  the  word     mortgage 
should  be  deemed  to  extend  to  any  lien  for  unpaid  purchase-money  upon 
any  lands  or  hereditaments  purchased  by  a  testator      On  the  construc- 
tion of  these  acts,  it  was  held  that  they  were  inapplicable  to  leaseholds 
for  vears.m     It  was  also  held  that  the  latter  act  did  not  extend  the  term 
«  mortgage  "  to  a  lien  for  unpaid  purchase-money  upon  lands  purchased 
by  a  person  who  died  intestate.(m)     An  act  has  accordingly  been  passed 
to  amend  both  of  the  acts  above  mentioned.^)     This  act  provides  that 
these  acts  shall,  as  to  any  testator  or  intestate  dying  after    he  61st  ot 
December,  1877,  be  held  to  extend  to  a  testator  or  intestate  dying  seised 
or  possessed  of  or  entitled  to  any  land  or  other  hereditaments  of  what- 

(A)  Stat.  30  &  31  Vict.  c.  69.  («")  Sect-  L 

$  S^Vto^  T«.  !i  W.  R.  540,  1.  *.,.  H.  S.  33!  ;  Gae,  v.  «,  M. 

R.  22  W.  R.  211. 

(m)  Harding  v.  Harding,  V.-C.  B.,  L.  R.  13  Eq.  493. 
(n)  Stat.  40  &  41  Vict.  c.  34. 


438  OF  PERSONAL  INTERESTS  IN  REAL  ESTATE. 

ever  tenure,  which  shall  at  the  time  of  his  death  be  charged  with  the 
payment  of  any  sum  or  sums  of  money  by  way  of  mortgage  or  any  other 
equitable  charge,  including  any  lien  for  unpaid  purchase-money  ;  and  the 
devisee,  or  legatee,  or  heir,  shall  not  be  entitled  to  have  such  sum  or  sums 
discharged  or  satisfied  out  of  any  other  estate  of  the  testator  or  intestate, 
unless  (in  the  case  of  a  testator)  he  shall,  within  the  meaning  of  the  said 
acts,  have  signified  a  contrary  intention  ;  and  such  contrary  intention 
shall  not  be  deemed  to  be  signified  by  a  charge  of  or  direction  for  pay- 
ment of  debts  upon  or  out  of  residuary  real  and  personal  estate,  or  resid- 
uary real  estate. 

r*4391  *The  equity  of  redemption  belonging  to  the  mortgagor  may 
again  be  mortgaged  by  him,  either  to  the  former  mortgagee  by 
way  of  further  charge,  or  to  any  other  person.  In  order  to  prevent 
frauds  by  clandestine  mortgages,  it  is  provided  by  an  act  of  William  and 
Mary(o)  that  a  person  twice  mortgaging  the  same  lands,  without  discov- 
ering the  former  mortgage  to  the  second  mortgagee,  shall  lose  his  equity 
of  redemption.  Unfortunately,  however,  in  such  cases  the  equity  of 
redemption,  'after  payment  of  both  mortgages,  is  generally  worth  nothing. 
And  if  the  mortgagor  should  again  mortgage  the  lands  to  a  third  person, 
the  act  will  not  deprive  such  third  mortgagee  of  his  right  to  redeem  the 
two  former  mortgages. (p)  When  lands  are  mortgaged,  as  occasionally 
happens,  to  several  persons,  each  ignorant  of  the  security  granted  to  the 
other,  the  general  rule  is  that  the  several  mortgages  rank  as  charges  on 
the  lands  in  the  order  of  time  in  which  they  were  made,  according  to  the 
maxim  qui  prior  est  tempore,  potior  est  jure. (q)  But  as  the  first  mortgagee 
alone  obtains  the  legal  estate,  he  has  this  advantage  over  the  others,  that 
if  he  takes  a  further  charge  on  a  subsequent  advance  to  the  mortgagor, 
without  notice  of  any  intermediate  second  mortgage,  he  will  be  preferred 
to  an  intervening  second  mortgagee.(r)1     And  if  a  third  mortgagee,  who 

(o)  Stat.  4  &  5  Will.  &  Mary,  c.  16,  s.  3  ;  see  Kennard  v.  Futvoye,  2  Giff.  81. 
(p)  Stat.  4  &  5  Will.  &  Mary,  c.  16,  s.  4. 

(q)  Jones  v.  Jones,  8  Sim.  633 ;  Wiltshire  v.  Rabbits,   14  Sim.  76  ;  Wilmont  v.  Pike, 
5  Hare  14. 

(r)  Goddard  v.  Complin,  1  Cha.  Ca.  119. 

1  In  other  words,  as  was  said  by  the  and  this  the  Lord  Chief  Justice  Hale 
Master  of  the  Rolls  in  Brace  v.  Duchess  of  called  a  '  plank'  gained  by  the  third  mort- 
Marlborough,  "  the  mortgagee  having  ob-  gagee,  or  tabula  in  naufragio,  which  con- 
tained the  first  mortgage,  and  got  the  law  struction  is  in  favor  of  a  purchaser,  every 
on  his  side,  and  equal  equity,  he  shall  mortgagee  being  such  pro  tanto."  R. 
thereby  squeeze  out  the  second  mortgagee, 


OF   A    MORTGAGE   DEBT. 


439 


has  made  his  advance  without  notice1  of  a  second  mortgage,  can  procure 
a  transfer  to  himself  of  the  first  mortgage,  he  may  tack,  as  it  is  said,  his 
third  mortgage  to  the  first,  and  so  postpone  the  intermediate  incum- 
brancer.^) For  in  a  contest  between  innocent  parties,  *each  j-*440] 
having  equal  right  to  the  assistance  of  the  court,  the  one  who 
happens  to  have  the  legal  estate  is  preferred  to  the  others ;  the  maxim 
being  that,  when  the  equities  are  equal,  the  law  shall  prevail.  The  doc- 
trine thus  established  was,  however,  very  seriously  broken  in  upon  by  the 
7th  section  of  the  Vendor  and  Purchaser  Act,  1874,(«)  which  provided 
that  after  the  commencement  of  that  act  no  priority  or  protection  should 
be  given  or  allowed  to  any  estate,  right,  or  interest  in  land,  by  reason  of 
such  estate,  right,  or  interest 'being  protected  by  or  tacked  to  any  legal 
or  other  estate  or  interest  in  such  land  :  provided  always  that  this  section 
should  not  take  away  from  any  estate,  right,  title,  or  interest  any  priority 
or  protection  which,  but  for  this  section,  would  have  been  given  or  allowed 
thereto  as  against  any  estate  or  interest  existing  before  the  commence- 
ment of  the  act.  This  was  a  very  objectionable  enactment,  in  the  absence 
of  any  general  registry  of  title  deeds ;  and  it  has  been  repealed  by  the 
Land  Transfer  Act,  1875,(w)  as  from  the  date  at  which  it  came  into  opera- 
tion, except  as  to  anything  duly  aone  thereunder  before  the  commence- 
ment of  that  act.  A  mortgage  may  be  made  for  securing  the  payment 
of  money  which  may  thereafter  become  due  from  the  mortgagor  j-*^! 
to  the  mortgagee. (V)     Where  a  mortgage  *extends  to  future 

(s)  Brace  v.  Duchess  of  Marlborough,  2  P.  Wms.  491 ;  Bates  v.  Johnson,  Johnson  304. 

(t)  Stat.  37  &  38  Vict.  c.  78,  passed  7th  August,  1874. 

(u)  Stat.  38  k  39  Vict.  c.  87,  s.  129.     This  act  commenced  1st  January,  1876. 

(x)  The  Stamp  Act,  1870,  stat.  33  &  34  Vict.  c.  97,  provides,  sect.  107,  (1)  that  a 


Ut  is  absolutely  necessary  that  the  third  Caine's    Cases  112,  but  the  decision  was 

mortgagee  be  without  notice;  he  must  be  a  reversed  by  the  Court  of  Errors,  on  the 

bond  fide  purchaser,  without  notice  of  the  ground  that  it  was  opposed  to  the  system 

prior  incumbrance,  when  he  took  his  origi-  of  our  registry  acts,  and  such  has  been  the 

nal  security,  for  else  he  cannot  come  into  course  of  decisions  throughout  the  United 

equity  for  protection.     Hence  it  is  that  in-  States,  in  none  of  which  it  is  believed  that 

asmuch  as  the  registry  acts  in  force  in  all  the  doctrine  of  tacking  prevails:  Andersen 

of  the  United  States  make  the  registry  con-  v.  Neff,  11  Serg.  &  Rawle  223  ;  Osborne  v. 

structive  notice  to  all  persons,  the  system  Carr,  12  Connect.  208  ;  Brazee  v.  Lancaster 

of  tacking  loses  its  application,  as  is  the  Bank,  14  Ohio  321  ;   Averill  v.  Guthrie,  8 

case  also  in  Ireland,  under  the  registry  act  Dana  84  ;  Siter  v.  McClanachan,  2  Grattan 

in  force  in  that  country :  Latouche  v.  Lord  280  ;  4  Kent's  Com.  476.     The  student  will 

Dunsany,  1   Sch.  &  Lefroy  157;    Bond  v.  find  a  short  note  on  this  subject  in  Marsh 

Hopkins,  Id.  430.     The  English  doctrine  v.  Lee,  1  Lead.  Cas.  in  Eq.  602,  3d  Am.  ed. 

had,  indeed,  been  recognized  in  New  York,  [4th  Am.  ed.  p.  853]. 
in   the   early  case  of  Grant  v.  Bissett,   1 


441  OF    PERSONAL    INTERESTS    IN    REAL    ESTATE. 

advances,  it  has  been  decided  that  the  mortgagee  cannot  safely  make  such 
advances,  if  he  have  notice  of  an  intervening  second  mortgage. (y)1 

It  was  formerly  a  rule  of  equity  that  a  solicitor  could  not  take  from 
his  client  a  mortgage  to  secure  future  costs,  lest  he  should  be  tempted 
on  the  strength  of  it  to  run  up  a  long  bill. (2)  This  illiberal  rule  has 
now  been  abolished  by  the  Attorneys'  and  Solicitors'  Act,  1870,(a) 
which  provides(6)  that  an  attorney  or  solicitor  may  take  security  from 
his  client  for  his  future  fees,  charges,  and  disbursements,  to  be  ascer- 
tained by  taxation  or  otherwise. 

security  for  the  payment  or  repayment  bf  money  to'be  lent,  advanced,  or  paid,  or  which 
may  become  due  on  an  account  current,  either  with  or  without  money  previously  due, 
is  to  be  charged  when  the  total  amount  secured  or  to  be  ultimately  recoverable  is  in 
any  way  limited,  with  the  same  duty  as  a  security  for  the  amount  so  limited.  (2)  That 
when  such  total  amount  is  unlimited,  the  security  is  to  be  available  for  such  an  amount 
only  as  the  ad  valorem  duty  imposed  thereon  extends  to  cover.  (3)  Provided  that  no 
money  to  be  advanced  for  the  insurance  of  any  property  comprised  in  any  such  security 
against  damage  by  fire,  or  for  keeping  up  any  policy  of  life  insurance  comprised  in  such 
security,  or  for  effecting  in  lieu  thereof  any  new  policy,  or  for  the  renewal  of  any  grant 
or  lease  of  any  property  comprised  in  such  security,  upon  the  dropping  of  any  life 
whereon  such  property  is  held,  shall  be  reckoned  as  forming  part  of  the  amount  in 
respect  whereof  the  security  is  chargeable  with  ad  valorem  duty. 

(//)  P>olt  v.  Hopkinson,  L.  C,  4  Jur.  N.  S.  1119  ;  s.  c.  3  De  Gex  &  Jones  177,  affirmed 
in  the  H.  of  L.,  9  W.  R.  900  ;  s.  c.  9  H.  of  L.  Cas.  514  ;  overruling  Gordon  v.  Graham, 
7  Vin.  Ab.  52,  pi.  3.     See  also  Menzies  v.  Lightfoot,  M.  R.,  Law  Rep.  11  Eq.  459. 

(z)  Jones  v.  Tripp,  Jacob  322.  (<z)  Stat.  33  &  34  Vict.  c.  28. 

(4)  Sect.  16. 

1  The  rules  in  regard  to  mortgages  to  Reg.  N.  S.  79 ;  Ladue  v.  Detroit  &  M.  R.  R. 

secure  future  advances,   as  held   in   this  Co.,  13  Mich.  380;  Ward  v.  Cooke,  2  C.  E. 

country,  appear  to  be  these  :  Green    93;    Frye    v.    Bank,    11    111.    381; 

1.  Where  the  mortgagee  has  bound  him-  Parker  v.  Jacoby,  3  Grant  (Pa.)  300. 

self  to  make  the  advances,  the  mortgage  3.  Whether  the  mere  recording  of  the 

when  recorded  is  a  valid  lien  for  all  the  second  mortgage  is  such  notice  as  to  bring 

advances   actually   made,   although    some  the  mortgagee  within  this  rule  is  a  ques- 

of  them  may  have  been  made  after  notice  tion  which  has  not  yet  been  clearly  settled. 

of  a    subsequent    mortgage   of   the    same  It  was  held  to  be  sufficient  in  Spader  v. 

property:  3  Kent's  Com.  175  ;  Lyle  v.  Du-  Lawlar,  17  Ohio  371  ;  Parker  v.  Jacoby,  3 

comb,  5  Binn   585;  Moroney's  Appeal,  12  Grant  (Pa.)  300;    and  Ladue  v.  Detroit  & 

Harris  362;  s.  c.  4  Am.  Law  Reg.  O.  S.  169;  M.  R.  R.  Co.,  13  Mich.  380  ;  but  otherwise 

Crain  v.  Deming,  7  Com.  387.  in  McDaniels  v.  Calvin.  16  Vt.  300;  Ward 

2.  Where,  however,  such  advances  are  v.  Cooke,  2  C.  E.  Green  93  ;  and  semble  in 
optional  with  the  mortgagee  and  he  has  Robinson  v.  Williams,  22  N.  Y.  380.     M. 
actual  notice  of  the  later  mortgage,  such  See  note  of  the  late  Judge  Redfield  to 
later   mortgage   takes   precedence   of  all  the  case  of  Boswell  v.  Goodwin,  12  Am. 
advances  made  after  notice.     Boswell   v.  Law  Reg.  79,  91. 

Goodwin,  31  Conn.  74;    s.  c.  3  Am.  Law 


OF    A    MORTGAGE    DEBT.  441 

There  is  one  case  in  which  the  rules  of  equity  singularly  and,  as  the 
writer  thinks,  unduly  favor  the  mortgagee.1  If  one  person  should  mort- 
gage lands  to  another  for  a  sum  of  money,  and  subsequently  mortgage 
other  lands  to  the  same  person  for  another  sum  of  money,  the  mortgagee 
is  placed  by  the  rules  of  equity  in  the  same  favorable  position  as  if  the 
whole  of  the  lands  had  been  mortgaged  to  him  for  the  sum  total  of  the 
money  advanced.  The  mortgagor  cannot  redeem  either  mortgage  with- 
out also  redeeming  the  other ;  and  the  mortgagee  may  enforce  the  pay- 
ment of  the  whole  of  the  principal  and  interest  due  to  him  on  both 
mortgages  out  of  the  lands  comprised  in  either.      This  rule,  known  as 

the  *doctrine  of  consolidation  of  securities,  has  been  extended    _J 

r  4421 
to  the  case  of  mortgages  of  different  lands  made  to  different  per-    L         J 

sons  by  the  same  mortgagor  becoming  vested  by  assignment  in  the  same 
mortgagee,  even  when  the  equities  of  redemption  of  the  different  lands 
have  become  vested  in  different  persons. (c)  It  follows,  therefore,  that 
no  person  can  safely  lend  money  on  a  second  mortgage.  For,  in  addi- 
tion to  the  risk  of  some  third  mortgagee  getting  in  and  tacking  the  first 
mortgage, (d)  there  is  this  further  danger,  that  if  the  mortgagor  should 
have  mortgaged  some  other  estate  to  some  other  person  for  more  than 
its  value,  the  holder  of  the  deficient  security  may  take  a  transfer  of  the 
first  mortgage,  and,  consolidating  his  own  security  with  it,  exclude  the 
second  mortgagee.  The  purchaser  of  an  equity  of  redemption  is  exposed 
to  similar  risks.  Hence,  it  follows  that,  in  the  words  of  an  eminent 
judge,  "it  is  a  very  dangerous  thing  at  any  time  to  buy  equities  of  re- 
demption or  to  deal  with  them  at  all. "(e) 

(c)  Vint  v.  Padget,  2  De  Gex  &  Jones  611.     See  Baker  v.  Gray,  L.  R.  1  Ch.  Div.  491. 

(d)  Ante,  p.  439. 

(e)  Beevor  v.  Luck,  V.-C.  W.,  L.  R.  4  Eq.  537,  549. 

1  The   doctrine  of  the  consolidation   of  specific  debt  for  which  it  was  made,  and 

securities  applied  to  mortgages  as  stated  is  satisfied  by  payment  of  that  debt :  Dor- 

in  this  paragraph  is  believed  not  to  have  row  v.  Kelley,  1  Dall.  142  ;  Thomas's  Ap- 

been  adopted  by  any  of  the  courts  in  this  peal,  6  Casey  378  ;  and  the  law  is  believed 

country.     It  is  held  in  Pennsylvania  that  to   be   substantially   the    same   in  all  the 

the  mortgage  is   a  security  only  for   the  States.  M. 


[*443]  *PART  V. 

OF  TITLE. 

It  is  evident  that  the  acquisition  of  property  is  of  little  benefit  unless 
accompanied  with  a  prospect  of  retaining  it  without  interruption.  In 
ancient  times  conveyances  were  principally  made  from  a  superior  to  an 
inferior,  as  from  the  great  baron  to  his  retainer,  or  from  a  father  to  his 
daughter  on  her  marriage. (a)  The  grantee  became  the  tenant  of  the 
grantor  ;  and  if  any  consideration  were  given  for  the  grant,  it  more 
frequently  assumed  the  form  of  an  annual  rent,  than  the  immediate  pay- 
ment of  a  large  sum  of  money. (b)  Under  these  circumstances,  it  may 
readily  be  supposed  that,  if  the  grantor  were  ready  to  warrant  the 
grantee  quiet  possession,  the  title  of  the  former  to  make  the  grant  would 
not  be  very  strictly  investigated ;  and  this  appears  to  have  been  the 
practice  in  ancient  times  ;  every  charter  or  deed  of  feoffment  usually  end- 
ing with  a  clause  of  warranty,  by  which  the  feoffor  agreed  that  he  and 
his  heirs  would  warrant,  acquit,  and  forever  defend  the  feoffee  and  his 
heirs  against  all  persons. (c)  Even  if  this  warranty  were  not  expressly 
inserted,  still  it  would  seem  that  the  word  give,  used  in  a  feoffment,  had 
the  effect  of  an  implied  warranty  ;*  but  the  force  of  such  implied  war- 

(a)  See  ante,  p.  38.  (b)  Ante,  p.  39. 

(c)  Bract,  lib.  2,  cap.  6,  fol.  17  a. 

1  Long  before  the  introduction  of  deeds,  scended  upon  the  heir  of  the  grantor,  so 
however,  the  warranty  of  the  fief  was  one  long  as  he  had  any  lands  to  answer  it: 
of  the  incidents  of  the  feudal  relation  be-  Co.  Litt.  384  b  ;  Butler's  note  to  Co.  Litt. 
tween  the  lord  and  vassal,  and  enured  to  365  a.  When,  in  later  times,  it  became 
the  latter  as  a  necessary  consequence  of,  or  usual  to  authenticate  the  transfer  of  lands 
return  for,  the  homage  by  which  the  land  by  a  deed  or  charter,  as  it  was  termed,  the 
was  held,  so  that  if  the  vassal's  title  were  word  give,  or  dedi,  had,  as  is  stated  in  the 
disputed,  he  might  call  upon  his  donor  to  text,  the  effect  of  an  implied  warranty,  but 
warrant  or  insure  his  gift,  which  if  he  failed  this  did  not  in  anyway  impair  or  affect 
to  do,  and  the  vassal  were  evicted,  the  the  warranty  that  was  implied  from  tenure, 
lord  was  bound  to  give  him  another  fief  of  "For,"  says  Coke,  "in  deeds  where  is 
equal  value  in  recompense  ;  in  other  words,  contained  dedi  et  concessi,  without  homage, 
as  the  feudal  system  imposed  upon  the  or  without  a  clause  that  containeth  war- 
grantee  the  duties  of  tenure,  it  also  bound  ranty,  and  to  be  holden  of  the  givers  and 
the  lord,  by  a  reciprocal  obligation,  either  their  heirs  by  a  certain  service,  it  is  agreed 
to  protect  the  tenant  in  his  fief,  or  to  give  that  the  givers  and  their  heirs  shall  be 
him    another — an    obligation    which    de-  bound  by  warranty,  and,  if  even  there  be 


OF   TITLE. 


443 


rarity  was  confined  to  the  feoffor  only,  exclusive  of  his  heirs,  whenever  a 
feoffment  was  made  of  lands  to  be  holdeii  of  the  chief  lord  of  the  fee.(d)1 
Under  an   express  warranty,  *the  feoffor,  and  also  his  heirs, 


were  bound,  not  only  to  give  up  all  claim  to  the  lands  them- 


[*444] 


selves,  but  also  to  give  to  the  feoffee  or  his  heirs  other  lands  of  the  same 
value,  in  case  of  the  eviction  of  the  feoffee  or  his  heirs  by  any  person 
having  a  prior  title  ;(e)  and  this  warranty  was  binding  on  the  heir  of 
the  feoffor  whether  he  derived  any  lands  by  descent  from  the  feoffor  or 
not,(/)  except  only  in  the  case  of  the  warranty  commencing,  as  it  was 
said,  by  disseisin  ;  that  is,  in  the  case  of  the  feoffor  making  a  feoffment 
with  warranty  of  lands  of  which  he,  by  that  very  act,(#)  disseised  some 
person, (h)  in  which  case  it  was  too  palpable  a  hardship  to  make  the 
heir  answerable  for  the  misdeed  of  his  ancestor.  But  even  with  this  ex- 
ception, the  right  to  bind  the  heir  by  warranty  was  found  to  confer  on 
the  ancestor  too  great  a  power ;  thus,  a  husband,  whilst  tenant  by  the 
curtesy  of  his  deceased  wife's  lands,  could,  by  making  a  feoffment  of  such 
lands  with  warranty,  deprive  his  son  of  the  inheritance ;  for  the  eldest 
son  of  the  marriage  would  usually  be  heir  both  to  his  mother  and  to  his 

(d)  4  Edw.  I.  stat.  3,  c.  6  ;  2  Inst.  275  ;  Co.  Litt.  384  a,  n.  (1). 

(e)  Co.  Litt.  3G5  a.  (/)  Litt.  s.  712. 

(ff)  Litt,  s.  704  ;  Co.  Litt.  371  a.  (h)  Litt.  ss.  697,  698,  699,  700. 


an  express  warranty  in  the  deed,  yet  that 
taketh  not  away  the  warranty  that  is 
wrought  by  force  of  the  word  dedi,  but  the 
feoffee  may  take  advantage  either  of  the 
one  or  the  other  at  his  pleasure."  2  Insti- 
tutes 275.  R. 

1  This  was,  however,  by  virtue  of  the 
"  Statute  de  bigamis,"  passed  in  the  year 
1272,  4  Edw.  I.  ch.  6,  which  altered  the 
common  law,  by  providing  that  "where  is 
contained  dedi  et  concessi,  to  be  holden  of 
the  chief  lord  of  the  fief,  or  of  others,  and 
not  of  feoffors  or  of  their  heirs,  reserving 
no  service,  without  homage,  or  without 
the  foresaid  clause,  their  heirs  shall  not  be 
bounden  to  warranty,  notwithstanding  the 
feoffor,  during  his  own  life,  by  force  of  his 
own  gift,  shall  be  bounden  to  warrant;" 
that  is  to  say,  where  the  gift  created  no 
tenure  between  the  grantor  and  grantee, 
the  word  dedi  implied  a  warranty  merely 
to  the  donor  during  his  life,  and  not  one 
which  would  impose  an  obligation  on  his 
heirs ;  and  as,  a  few  years  after  this,  the 


statute  of  Quia  eniptores,  18  Edw.  I.  c.  1, 
prohibited  subinfeudation,  by  declaring 
that  it  should  be  lawful  for  every  freeman 
to  sell  his  lands  at  his  own  pleasure,  and 
that  the  feoffee  should  hold  the  lands  of 
the  chief  lord  of  the  fee  by  such  service 
and  customs  as  his  feoffor  was  bound  to 
before,  it  followed  that  the  statute  de 
bigamis  applied  to  every  case  except  two, 
namely,  where  a  gift  was  made  directly 
from  the  chief  lord  of  the- fee,  or  where  it 
left  a  reversion  in  the  donor :  Co.  Litt. 
384  b;  Fitz.  Nat.  Brev.  134.  And  it  was 
owing  to  the  combined  effect  of  these  two 
statutes  that  express  warranties  became 
thenceforward  almost  universal,  and  were 
termed  warranties  in  deed,  as  distinguished 
from  the  others,  which  were  termed  war- 
ranties in  law,  "because  in  judgment  of 
law  they  (that  is,  the  words  from  which 
warranty  was  implied)  amount  to  a  war- 
ranty, without  this  verb  warrantizo."  Co. 
Litt.  384  a.  R. 


444  OF   TITLE. 

father ;  as  heir  to  his  mother  he  would  be  entitled  to  her  lands,  but  as 
heir  of  his  father  he  was  bound  by  his  warranty.  This  particular  case 
was  the  first  in  which  a  restraint  was  applied  by  parliament  to  the  effect 
of  a  warranty,  it  having  been  enacted^')  that  the  son  should  not,  in  such 
a  case,  be  barred  by  the  warranty  of  his  father,  unless  any  heritage 
descended  to  him  of  his  father's  side,  and  then  he  was  to  be  barred  only 
to  the  extent  of  the  value  of  the  heritage  so  descended.  The  force  of  a 
warranty  was  afterwards  greatly  restrained  by  other  statutes,  enacted  to 
meet  other  cases  ;(k)1  and  the  clause  of  warranty  having  long  been  dis- 
P4451  USe(*  *n  *m°dern  conveyancing,  its  chief  force  and  effect  have 
now  been  removed  by  clauses  of  two  modern  statutes,  passed  at 
the  recommendation  of  the  real  property  commissioners. (I)2 

In  addition  to  an  express  warranty,  there  were  formerly  some  words 
used  in  conveyancing,  which  in  themselves  implied  a  covenant  for  quiet 
enjoyment ;  and  one  of  these  words,  namely  the  word  demise,  still  retains 
this  power.  Thus,  if  one  man  demises  and  lets  land  to  another  for  so 
many  years,  this  word  demise  operates  as  an  absolute  covenant  for  the 
quiet  enjoyment  of  the  land  by  the  lessee  during  the  term.(m)3     But  if 

(»)  Stat.  6  Edw.  I.  c.  3. 

(k)  Stat.  Be  donis,  13  Edw.  I.  c.  1,  as  construed  by  the  judges,  see  Co.  Litt.  373  b,  n. 
(2)  ;  Vaughan  375  ;  stat.  11  Hen.  VII.  c.  20 ;  4  &  5  Anne  c.  16,  s.  21. 

(1)  3  &  4  Will.  IV.  27,  s.  39 ;  3  &  4  Will.  IV.  c.  74,  s.  14. 

(m)  Spencer's  Case,  5  Rep.  17  a;  Bac.  Ab.  tit.  Covenant  (B)  ;  Mostyn  v.  The  West 
Mostyn  Coal  and  Iron  Company,  Limited,  L.  R.,  1  C.  P.  D.  145. 

1  Thus  the  statute  of  11  Hen.  VII.  c.  20,  the  title  is  implied  from  the  words  of 
provided  that  a  warranty  by  a  tenant  in  leasing ;  and  such  has  been  the  law  from 
dower,  a  tenant  for  life,  a  tenant  in  tail  very  early  times,  Co.  Litt.  45  b  ;  An- 
jointly  with  the  husband,  of  lands  derived  drews'  Case,  Cro.  Eliz.  214;  Stokes'  Case, 
from  his  ancestor,  should  be  void  against  4  Coke  81 ;  Spencer's  Case,  5  Id.  16  ;  Style 
the  heirs  next  inheritable,  unless  done  with  v.  Herring,  Cro.  Jac.  73,  down  to  the  pres- 
their  consent ;  and  the  statute  4  &  5  Anne,  ent  day,  and  on  both  sides  of  the  Atlantic  : 
c.  16,  enacted  that  all  warranties  by  any  Merrill  v.  Frame,  4  Taunton  329  ;  Williams 
tenant  for  life  should  be  void  as  against  v.  Burrel,  1  Com.  Bench  402;  Frost  v. 
those  in  remainder  and  reversion,  and  all  Raymond,  2  Caines  194;  Grannis  v.  Clark, 
collateral  warranties  by  an  ancestor  hav-  8  Cowen  36  ;  Tone  v.  Brace,  11  Paige  569  ; 
ing  no  estate  in  possession  should  be  void  Sumner  v.  Williams,  8  Mass.  201  ;  Dexter 
as  against  his  heirs.                                  R.  v.  Manly,  4  Cushing  14,  and  there  would 

2  That  is  to  say,  these  statutes  have  seem  to  be  little  doubt  that  such  a  cove- 
swept  away  all  real  actions,  including,  of  nant  is  implied  from  any  words  of  leasing, 
course,  those  of  warrantia  chartse  and  for  a  lease  for  years  is  regarded  less  as  a 
voucher,  which  were  the  aucient  remedies  conveyance  of  an  estate  than  as  a  contract 
on  a  warranty.  See  Rawle  on  Covenants  for  the  possession  :  Black  v.  Gilmore,  9 
for  Title  8,  205.                                          R.  Leigh  448.    But  although  such  words  may, 

3  In  other  words,  on  the  creation  of  an  in  the  creation  of  a  lease,  imply  a  cove- 
estate  less  than  freehold,  a  covenant  for  nant,  they  do  not  in  its  assignment :  Lan- 


OF   TITLE. 


445 


the  lease  should  contain  an  express  covenant  by  the  lessor  for  qu.et 
en  oyment,  limited  to  his  own  acts  only,  snch  express  covenant  showing 
3y  what  is  intended  will  nullify  the  implied  covenant,  which  the 
mrd  demise  would  otherwise  contain.^  So,  as  we  have  seen,  the 
word  give  formerly  implied  a  personal  warranty ;  and  he  word  grant 
a  supposed  to  have  implied  a  warranty,  unless  ol  owed  by  an  express 
covenant,  imposing  on  the  grantor  a  less  liabi  ity.(«)>  An  exchange  and 
v  partition  between  coparceners  have  also  until  recently  imphed  a  mutual 


(raj  Noke's  Case,  4  Rep.  80  b. 


(o)  See  Co.  Litt.  384  a,  n.  (1). 


dvdale  v.  Cheyney,  Cro.  Eliz.  157  ;  Waldo 
v.  Hall,   14  Mass.   486;  for  the  object  of 
the  assignment  is,  in  general,  to  put  the 
assignee  in  place  of  the  lessee,  and  when 
that  is  done,  the  assignor  ceases  to  have 
any   further   concern    with    the    contract, 
unless  he  has  bound  himself  by  express 
covenants:    Blair  v.  Rankin,  11  Missouri 
442.     In  Messent  v.  Reynolds,  3  C.  B.  194, 
and  Granger  v.  Collins,  6    Mees.  &  Wels. 
460,  it  was  held  that  no  such  covenant  can 
be  implied  from  the  mere  relation  of  land- 
lord and  tenant.      [These  cases,  however, 
appear  to  have  been  overruled  by  Bandy 
v.  Cartwright,   8   Exch.   913,  in  which  it 
was   held   that  in   a  lease   by  parol  at  a 
given  rent  there  was  an  implied  warranty 
of  quiet  possession  ;  though  this  decision 
has  not  been  fully  acquiesced  in.    See  Hall 
v   City  of  London  Brewery  Co.,  2  Best  & 
Smith  741   (E.  C.  L.  R.  vol.  110).     It  had 
previously  been  decided  in  the  same  way 
in    Pennsylvania:    Maule   v.  Ashinead,   8 
Harris   482,   in   which   the    lease   was    by 
parol ;  (Ross  v.  Dysart,  9  Casey  452  ;)  and 
in  Ohio,  Young  v.  Hargrave,  7  Ohio   394, 
in  which  the   operative  word  was  "  rent." 
And   such  would'seem  to  be  the  law  in 
New   York,   notwithstanding  the   case   of 
Baxter  v.  Ryerss,  13  Barb.  284,  as  in  Mack 
v'patcuin,  42  N.  Y.  174  (s.  c.  29  How.  Pr. 
20)     the    court   say,    "it    can    hardly    be 
doubted   at  this  day  that  by  the   general 
assent  of  the  courts  in  this  State,  a  cove- 
nant for   quiet  enjoyment    is    implied    in 
every  mutual  contract  for  the  leasing  and 
demise  of  land,  by  whatever  form  of  words 
the  agreement  is  made."     M.]     The  effect 
26 


of  the  words  of  leasing  is  not  only  to  create 
a  covenant  for  the  quiet  enjoyment  of  the 
demised  premises,  but  also  a  covenant  that 
the  lessor  had  the  power  to  demise  them  : 
Holden  v.  Taylor,  Hobart's  Rep.  12  ;  Line 
v.  Stevenson,  5  Bing.  New  Cas.  183  ;  Gran- 
nis  v.  Clark,  8  Cowen  36  ;  Crouche  v.  Fowle, 
9  New  Hamp.  219.  R- 

i  In  other  words,  the  maxim  expression 
facit   cessare    taciturn   will    apply.      Thus, 
where  in  Noke's  Case,  cited  in  the  text,  the 
lessor,  after  employing  the  words  demise 
and  grant,  which  imported  a  warranty  for 
the  acts  of  all  persons  whomsoever,  added 
a  covenant  for  quiet  enjoyment,  "  without 
eviction  by  the  lessor,  or  any  claiming  under 
him,"  it  was  held  that  "  the  said  express 
covenant  qualified   the   generality  of  the 
covenant  in  law,  and  restrained  it  by  the 
mutual    consent  of   both   parties,  that  it 
should  not  extend  further  than  the  express 
covenant;"  and    this    doctrine    has  since 
been    repeatedly   recognized:    Frontin    v. 
Small,    2     Lord    Raym.    419;     Merrill    v. 
Frame,    4    Taunton    329;    Schlencker   v. 
Moxsy,  3  Barn.  &  Cress.  792  (E.  C.  L.  R. 
vol.  10);  Line  v.  Stevenson,  5  Bing.  New 
Cas   183  (E.  C.  L.  R.  vol.  35)  ;   [Dennett  v. 
Atherton,  L.  R.  7  Q.  B.  316.]  R. 

2  There  was  never,  however,  more  than  a 
supposition  that  a  warranty  was,  in  the  case 
of  a  freehold,  implied  from  the  word  grant. 
There  are  dicta  to  that  effect  in  Man  v. 
Ward,  2  Atkins  238,  and  Browning  v. 
Wright,  2  Bos.  &Pul.  13  ;  but  in  Frost  v. 
Raymond,  2  Caines's  Rep.  188,  Ch.  J.  Kent 
showed  clearly  that  such  a  doctrine  had 
no  foundation  in  the  common  law.       R. 


445 


OF    TITLE. 


right  of  re-entry,  on  the  eviction  of  either  of  the  parties  from  the  lands 
exchanged1  or  partitioned. (pf  And,  by  the  Registry  Acts  for  Yorkshire, 
the  words  grant,  bargain,  and  sell,  in  a  deed  of  bargain  and  sale  of  an 
estate  in  fee  simple,  enrolled  in  the  Register  Office,  imply  covenants  for 
the  quiet  enjoyment  of  the  lands  against  the  bargainor,  his  heirs  and 
assigns,  and  all  claiming  under  him,  and  also,  for  further  assurance 
thereof,  by  the  bargainor,  his  *heirs  and  assigns,  and  all  claim- 
L         J    ing  under  him,  unless  restrained  by  express  words. {qf     The 

(p)  Bustard's  Case,  4  Rep.  121  a. 

(g)  Stat.  6  Anne,  c.  35,  ss.  30,  34  ;   8  Geo.  II.  c.  6,  s.  35. 


1  By  the  common  law.  a  warranty  was 
implied  in  every  exchange,  "  for  the  word 
excambium  doth  imply  a  warranty,"  Co. 
Litt.  384,  as  also  in  the  case  of  a  partition, 
and  in  both  of  these  species  of  assurance 
there  was  also  a  condition,  which,  in  case 
of  eviction  of  either  party,  gave  a  right  of 
re-entry  upon  the  other  portion.  When, 
however,  a  coparcener  took  advantage  of 
the  condition,  she  defeated  the  partition 
in  the  whole  ;  but  when  she  vouched  by 
force  of  the  warranty,  she  merely  recovered 
recompense  for  the  part  that  was  lost. 
Bustard's  Case,  4  Coke  121.  Both  the 
warranty  and  condition  only  held,  how- 
ever, in  privity  of  estate  ;  and  hence  where 
one  parcener  aliened,  and  thus  severed 
the  connection  between  herself  and  her 
coparcener,  the  condition  and  warranty 
were  lost.  The  statute  of  31  Hen.  VIII.  c. 
1,  which  first  gave  to  joint  tenants  and 
tenants  in  common  the  right  of  partition 
by  writ,  gave  also  the  right  to  the  war- 
ranty, but  makes  no  mention  of  the  condi- 
tion, which  therefore,  in  the  cases  of  par- 
tition between  joint  tenants  and  tenants  in 
common,  neither  exists  by  common  law  or 
by  statute  :  and  it  has  been  held  that  un- 
less the  partition  be  bj-  writ,  neither  war- 
ranty nor  condition  are  implied  :  Weiser  v. 
Weiser,  5  Watts  279  ;  though  the  case  of 
tenants  in  common  by  descent  has,  in 
Pennsylvania,  been  likened  to  that  of  co- 
parceners ;  and.  therefore,  in  a'  partition 
by  deed  between  them,  both  warranty  and 
condition  should  be  considered  as  implied  : 
Patterson  v.  Laning,  10  Watts  135  [Seaton 
v.  Barry,  4  Watts  &  Serg.  183].    The  better 


remedy  upon  such  a  warranty  has  been 
suggested  to  be  a  bill  in  equity  for  con- 
tribution and  reimbursement:  Sawyer  v. 
Cator,  8  Humphries  259.  A  practical  in- 
convenience of  the  implied  warranty  in 
the  case  of  an  exchange  is  that  it  makes 
what  is  termed  "  a  double  title  ;"  that  is 
to  say,  upon  the  sale  of  either  of  the  ex- 
changed properties,  the  title  to  the  other 
must  also  be  examined  :  Preston  on  Ab- 
stracts 89  ;  in  England  the  statute  of  8  &  9  • 
Victoria,  c.  106  (there  was  a  previous  and 
more  limited  one  of  4  &  5  Will.  IV.  c.  30. 
\\  24,  25),  has  provided  that  deeds  of  ex- 
change shall  prospectively  have  no  longer 
the  effect  of  creating  any  warranty,  or 
right  of  re-entry,  or  implied  covenant  by 
implication.  R. 

2  To  produce  a  warranty  of  this  kind 
upon  an  exchange  of  lands,  it  is  absolutely 
necessary  that  the  word  exchange — ex- 
cambium — should  be  used.  No  other  word 
can  supply  its  place,  however  significant: 
Co.  Litt.  50  b:  51  b.  384  a.  Where  the 
partition  is  effected  by  mutual  deeds  of 
bargain  and  sale,  no  such  warranty  arises, 
but  the  remedy  of  a  party  evicted  is  an 
action  for  damages  upon  the  covenants  in 
his  deed  :  Gamble  v.  McOlure,  19  P.  F. 
Smith  282. 

3  Within  a  few  years  from  the  passage 
of  the  statute  of  Anne  here  referred  to, 
one  substantially  similar,  though  less 
carefully  drawn,  was  enacted  in  Pennsyl- 
vania, and  has  since  been  copied,  with 
more  or  less  exactness,  in  the  States  of 
Delaware,  Virginia,  Indiana,  Illinois,  Ala- 
bama,   Missouri,     Michigan,     Mississippi. 


OF    TITLE.  446 

word  grant,  by  virtue  of  some  other  acts  of  parliament,  also  implies 
covenants  for  the  title. (r)  But  the  act  to  amend  the  law  of  real  property 
now  provides  that  an  exchange  or  a  partition  of  any  tenements  or  hered- 
itaments made  by  deed  shall  not  imply  any  condition  in  law;  and  that 
the  word  give  or  the  word  grant  in  a  deed  shall  not  imply  any  covenant 
in  law  in  respect  of  any  tenements  or  hereditaments,  except  so  far  as  the 
word  give  or  the  word  grant  may  by  force  of  any  act  of  parliament  imply 
a  covenant. (s)  The  author  is  not  aware  of  any  act  of  parliament  by 
force  of  which  the  word  give  implies  a  covenant. 

The  absence  of  a  warranty  is  principally  supplied  in  modern  times 
by  a  strict  investigation  of  the  title  of  the  person  who  is  to  convey ; 
although,  in  most  cases,  covenants  for  title,  as  they  are  termed,  are 
also  given  to  the  purchaser.  On  the  sale  or  mortgage  of  copyhold  lands 
those  covenants  are  usually  contained  in  a  deed  of  covenant  to  surrender, 
by  which  the  surrender  itself  is  immediately  preceded,(£)  the  whole  being 
regarded  as  one  transaction. (u)  By  these  covenants,  the  heirs  of 
the  vendor  are  always  expressly  bound ;  but,  like  all  *other  ^ . ,  „-> 
similar  contracts,  they  are  binding  on  the  heir  or  devisee  of  the 
covenantor  to  the  extent  only  of  the  property  which  may  descend  to  the 
one,  or  be  devised  to  the  other.(a;)  Unlike  the  simple  clause  of  warranty 
in  ancient  days,  modern  covenants  for  title  are  five  in  number,  and  few 
conveyancing  forms  can  exceed  them  in  the  luxuriant  growth  to  which 
their  verbiage  has  attained. (y)  The  first  covenant  is  that  the  vendor  is 
seised  in  fee  simple ;  the  next,  that  he  has  good  right  to  convey  the  lands  ; 
the  third,  that  they  shall  be  quietly  enjoyed ;  the  fourth,  that  they  are 
free  from  incumbrances ;  and  the  last,  that  the  vendor  and  his  heirs  will 
make  any  further  assurance  for  the  conveyance  of  the  premises  which 

(r)  As  in  conveyances  by  companies  under  the  Lands  Clauses  Consolidation  Act, 
1845,  stat.  8  &  9  Vict.  c.  18,  s.  132  ;  and  in  conveyances  to  the  Governors  of  Queen 
Anne's  Bounty,  stat.  1  &  2  Vict.  c.  20,  s.  22.  Conveyances  by  joint  stock  companies 
registered  under  the  Joint  Stock  Companies  Act,  1856  (now  repealed),  also  implied 
covenants  for  title.     Stat.  19  &  20  Vict.  c.  47,  s.  46. 

(s)  Stat.  8  &  9  Vict.  c.  106,  s.  4,  repealing  7  &  8  Vict.  c.  76,  s.  6. 

(<)  By  the  Stamp  Act,  1870,  stat.  33  &  34  Vict.  c.  97,  such  a  deed  of  covenant  is  now 
charged  with  a  duty  of  10s.,  and  if  the  ad  valorem  duty  on  the  sale  or  mortgage  is  less 
than  that  sum,  then  a  duty  of  equal  amount  only  is  payable. 

(«)  Riddell  v.  Riddell,  7  Sim.  529. 

(x)  Ante,  pp.  80,  82.  (y)  See  Appendix  (D). 

Iowa,  and  Arkansas.     A  more  particular     chapter  of  Rawle  on  Covenants  for  Title 
reference  to  these  several   local  statutes,  R. 

and  their  effect,  will  be  found  in  the  10th 


447 


OF   TITLE. 


may  reasonably  be  required.  At  the  present  day,  however,  the  first 
covenant  is  usually  omitted,  the  second  being  evidently  quite  sufficient 
■without  it;  and  the  length  of  the  remaining  covenants  has  of  late  years 
much  diminished.  These  covenants  of  title  vary  in  comprehensive- 
ness, according  to  the  circumstances  of  the  case.1  A  vendor  never  gives 
absolute  covenants  for  the  title  to  the  lands  he  sells,  but  always  limits 
his  responsibility  to  the  acts  of  those  who  have  been  in  possession  since 
the  last  sale  of  the  estate  ;2  so  that  if  the  land  should  have  been  pur- 
chased by  his  father,  and  so  have  descended  to  the  vendor,  or  have  been 
left  to  him  by  his  father's  will,  the  covenants  will  extend  only  to  the  acts 
of  his  father  and  himself  ;(z)  but  if  the  vendor  should  himself  have  pur- 
chased the  lands,  he  will  covenant  only  as  to  his  own  acts, (a)  and  the 
purchaser  must  ascertain,  by  an  examination  of  the  previous  title,  that 
the  vendor  purchased  what  he  may  properly  resell.  A  mortgagor,  on 
the  other  hand,  always  gives  absolute  covenants  for  title  ;3  for  those  who 
lend  money  are  accustomed  to  require  every  ^possible  security 


[*448] 


for  its  repayment;  and,  notwithstanding  these  absolute  cove- 


nants, the  title  is  investigated  on  every  mortgage,  with  equal,  and  indeed 


(z)  Sugd.  Vend,  and  Pur.  463,  13th  ed. 


(a)  See  Appendix  (D). 


1  In  some  of  the  United  States,  more  par- 
ticularly the  Northern  and  Middle  States, 
with  the  exception  of  Pennsylvania,  it  is 
believed  to  be  customary  to  insert  most  or 
all  of  the  covenants  for  title  mentioned  in 
the  text,  though  they  are  much  more  briefly 
couched  than  in  English  conveyancing.  But 
in  Pennsylvania,  and  the  Southern  and 
Western  States,  the  covenant  of  warranty 
(which  is  a  sort  of  adaptation  of  the  old 
warranty  to  the  form  of  covenant)  is  not 
unfrequently  the  only  one  employed.  See 
Rawle  on  Covenants,  ch.  i.  and  xi.  A  usual 
form  of  those  used  at  the  present  day  in 
England  will  be  found  infra,  at  page  515 
of  the  Appendix  to  this  volume.  R. 

2  Such  is  certainly  the  universal  practice 
in  England  ;  and  it  is,  perhaps,  the  usual 
practice  in  the  United  States,  wherever  the 
title  is  carefully  examined.  In  many  parts 
of  this  country,  however,  a  purchaser  gene- 
rally expects,  and  a  vendor  rarely  hesitates 
to  give,  a  covenant  of  general  warranty,  as 
it  seems  to  be  sometimes  thought  that  if 
the  latter  is  only  willing  to  covenant 
against  his  own  acts,  he  must  know  there 
is  something  defective  about  the  prior  title. 


But,  on  the  other  hand,  it  might  be  said 
that,  unless  there  were  something  wrong 
about  the  title,  the  purchaser  would  not 
have  required  a  general  covenant;  and  it 
is  believed  that  no  presumption  of  notice 
of  a  defect  in  the  title  can  properly  arise 
either  from  the  presence  or  the  absence 
of  general  covenants.  R. 

In  Pennsylvania  it  has  been  held  that  a 
purchaser  of  real  estate  has  no  right  to  ex- 
pect a  covenant  of  general  warranty  in  his 
deed,  unless  he  bargains  for  it:  an  agree- 
ment that,  upon  payment  of  the  purchase- 
money,  the  vendor  "will  well  and  suffi- 
ciently grant,  convey,  and  assure  the  said 
tract  of  land  to  the  vendee,  his  heirs  and 
assigns,"  entitles  the  vendee  only  to  a  spe- 
cial warranty  against  the  grantor  and  those 
claiming  under  him  :  Espy  v.  Anderson, 
2  Harris  308  ;  Withers  v.  Baird,  7  Watts 
229  ;   Cadwallader  v.  Tryon,  1  Wright  318. 

3  So,  also,  it  has  been  said  that  in  com- 
mon leases,  as  the  title  is  not  inspected, 
the  lessor  should  covenant  against  all  per- 
sons whomsoever :  Barton's  Conveyancing 
75.  R. 


OF   TITLE.  448 

with  greater  strictness,  than  on  a  purchase.1  When  a  sale  is  made  hy 
trustees,  who  have  no  beneficial  interest  in  the  property  themselves,  they 
merely  covenant  that  they  have  respectively  done  no  act  to  encumber 
the  premises.2  If  the  money  is  to  be  paid  over  to  A.  or  B.  or  any  per- 
sons in  fixed  amounts,  the  persons  who  take  the  money  are  expected  to 
covenant  for  the  title  ;(b)  but,  if  the  money  belongs  to  infants,  or  other 
persons  who  cannot  covenant,  or  is  to  be  applied  in  payment  of  debts  or 
for  any  similar  purpose,  the  purchaser  must  rely  for  the  security  of  the 
title  solely  on  the  accuracy  of  his  own  investigation. [c) 

The  period  for  which  the  title  was  investigated  was  formerly  the  last  sixty 
years  ;(d)  and  every  vendor  of  freehold  property  was  bound,  at  his  own  ex- 
pense, to  furnish  the  intended  purchaser  with  an  abstract  of  all  the  deeds, 
wills,  and  other  instruments  which  have  been  executed,  with  respect  to  the 
lands  in  question,  during  that  period  ;  and  also  to  give  him  an  oppor- 
tunity of  examining  such  abstract  with  the  original  deeds,  and  with  the 
probates  or  office  copies  of  the  wills ;  for,  in  every  agreement  to  sell  is 
implied  by  law  an  agreement  to  make  a  good  title  to  the  property  to  be 
sold.(f)     The  proper  length  of  title  to  an   advowson  was,  however,  100 
years,(/)  as  the  presentations,  which  are  the  only  fruits  of  the  advowson, 
and,  consequently,  the  only  occasions  when  the  title  is  likely  to  be  con- 
tested, occur  only  at  long  intervals.     On  a  purchase  of  copy-    p^g-i 
hold  *lands,  an  abstract  of  the  copies  of  court  roll,  relating   to 
the  property  for  the  last  sixty  years,  was  delivered  to  the  purchaser. 
And  even  on  a  purchase  of  leasehold  property,  the  purchaser  was  strictly 
entitled  to  a  sixty  years'  title  ;{g)  that  is,  supposing  the  lease  to  have 
been  granted  within  the  last  sixty  years,  so  much  of  the  title  of  the  lessor 
was  required  to  be  produced  as,  with  the  title  to  the  term  since  its  com- 
mencement, would  make  up  the  full  period  of  sixty  years.3     If  the  lease 

(6)  Sugd.  Vend,  k  Pur.  464,  13th  ed.  (c)  Ibid.  463. 

(d)  Cooper  v.  Emery,  1  Phill.  388.  (e)  Sugd.  Vend.  &  Pur.  281,  13th  ed. 

(/)  Ibid.  307. 

(g)  Purvis  v.  Rayer,  9  Price  488  ;   Souter  v.  Drake,  5  B.  &  Adol.  992   (E.  C.  L.  R. 

vol.  27). 

1  In  the  case,  however,  of  a  mortgage  2  And  such  is  the  usual  covenant  em- 
given  for  the  purchase-money  of  land,  tne  ployed  in  such  cases  on  this  side  of  the  At- 
covenants,  no  matter  how  general,  are  al-  lantic.  It  is  the  practice,  however,  in  Eng- 
ways  held  to  be  restrained  to  the  acts  of  land  to  insist  in  such  cases  on  covenants 
the  mortgagor  :  Rawle  on  Covenants  457,  from  the  parties  beneficially  interested, 
as  otherwise  he  would  be  prevented  or  es-  _  R- 
topped  from  availing  himself  of  the  cove-  3  And  upon  the  sale  of  a  reversionary 
nants  he  had  himself  received  from  his  interest,  the  abstract  must  go  back  suf- 
vendor  upon  the  sale.                             R.  ficiently   far   to*  show   its   creation,   and 


449  OF   TITLE. 

were  more  than  sixty  years  old,  the  lease  was  required  to  be  produced 
or  its  absence  accounted  for,  and  evidence  given  of  the  whole  of  its  con- 
tents.^) But  intermediate  assignments  upwards  of  sixty  years  old  were 
not  required  to  be  produced. 

The  Vendor  and  Purchaser  Act,  1814,(i)  however,  now  provides(#) 
that  in  the  completion  of  any  contract  of  sale  of  land  made  after  the 
31st  day  of  December,  1874,  and  subject  to  any  stipulation  to  the  con- 
trary in  the  contract,  forty  years  shall  be  substituted  as  the  period  of 
commencement  of  title  which  a  purchaser  may  require,  in  place  of  sixty 
years,  the  present  period  of  such  commencement ;  nevertheless,  earlier 
title  than  forty  years  may  be  required  in  cases  similar  to  those  in  which 
earlier  title  than  sixty  years  may  now  be  required.  The  act  uses  the 
word  "land."  which  has  a  statutory  meaning  when  used  in  an  act  of 
parliament,  including  tenements  and  hereditaments  of  any  tenure,  unless 
there  are  words  to  restrict  the  meaning  to  tenements  of  some  particular 
tenure.(^)  Now  an  advowson  is  certainly  an  hereditament ;  but  as  the 
act  substitutes  the  period  of  forty  years  "  in  place  of  sixty  years,  the 
present  period,"  and  as  one  hundred  years  and  not  sixty  years  was, 
when  the  act  passed,  the  *proper  period  for  the  deduction  of  the 
L  -J  title  to  an  advowson,  it  is  presumed  that  the  act  was  not  in- 
tended to  apply  to  advowsons,  and  that  the  title  to  an  advowson  must, 
therefore,  still  be  deduced  for  one  hundred  years.  The  act  further  pro- 
vides^) that  in  the  completion  of  any  such  contract  as  aforesaid,  and 
subject  to  any  stipulation  to  the  contrary  in  the  contract,  under  a  con- 
tract to  grant  or  assign  a  term  of  years,  whether  derived  or  to  be  derived 
out  of  a  freehold  or  leasehold  estate,  the  intended  lessee  or  assign  shall 
not  be  entitled  to  call  for  the  title  to  the  freehold.  The  act  further  pro- 
vides^) that  in  the  completion  of  any  such  contract,  and  subject  to  any 
stipulation  to  the  contrary,  recitals,  statements,  and  descriptions  of  facts, 
matters,  and  parties  contained  in  deeds,  instruments,  acts  of  parliament, 
or  statutory  declaration,  twenty  years  old  at  the  date  of  the  contract, 
shall,  unless  and  except  so  far  as  they  shall  be  proved  to  be  inaccurate, 
be  taken  to  be  sufficient  evidence  of  the  truth  of  such  facts,  matters,  and 

(h)  Frend  v.  Buckley,  Ex.  Ch.,  L.  R.,  5  Q.  B,  213. 

(i)  Stat.  37  &  38  Vict.  c.  78.  (k)  Sect.  1. 

(Z)  Stat.  13  &  14  Vict.  c.  21,  s.  4.  (to)  Stat.  37  &  38  Vict.  c.  78,  s.  2. 

(n)  Sect.  2. 

should  also  show  that  the  estate  has  been  sionary  interest:  Uarnian's  Conveyancing, 
enjoyed   in  possession    conformably  with     by  Sweet,  61.  R. 

the  instrument  which  created  the  rever- 


OF   TITLE. 


450 


descriptions.  The  last  provision  adopts,  as  a  general  rule,  a  stipulation 
which  had  been  usually  inserted  in  conditions  of  sale,  and  in  the  absence 
of  which  the  purchaser  had  a  right  to  require  evidence  of  the  truth  of 
the  matters  recited. 

It  is  not  easy  to  say  how  the  precise  term  of  sixty  years  came  to  be 
fixed  on  as  the  time  for  which  an  abstract  of  the  title  should  be  required.1 
It   is   true  that,  by  a   statute  of  tne  reign  of  Hen.  VIII.,(o)  the  time 
within  which  a  writ  of  right  (a  proceeding  now  abolished(p))  might  be 
brought  for  the  recovery  of  lands  was  limited  to  sixty  years ;  but  still  m 
the  case  of  Remainders  after  estates  for  life  or  in  tail,  this  statute    r-*451-j 
did  not  prevent  the  recovery  of  lands  long  after  the  period  of 
sixty  years  had  elapsed  from  the  time  of  a  conveyance  by  the  tenant  for 
life  or  in  tail ;   for  it  is  evident  that  the  right  of  a  remainder-man,  after 
an  estate  for  life  or  in  tail,  to  the  possession  of  the  lands  does  not  accrue 
until  the  determination  of  the  particular  estate.^)     A  remainder  after 
an  estate  tail  may,  however,  be  barred  by  the  proper  means;    but  a 
remainder  after  a  mere  life  estate  cannot.     The  ordinary  duration  of 
human  life  was  therefore,  if  not  the  origin  of  the  rule  requiring  a  sixty 
years'  title,  at  least  a  good  reason  for  its  continuance.     For,  so  long  as 
the  law  permits  of  vested  remainders  after  estates  for  life,  and  forbids  the 
tenant  for  life,  by  any  act,  to  destroy  such  remainders,  so  long  must  it  be 
necessary  to  carry  the  title  back  to  such  a  point  as  will  afford  a  reason- 
able presumption  that  the  first  person  mentioned  as  having  conveyed  the 
property  was  not  a  tenant  for  life  merely,  but  a  tenant  in  fee  simple.(r) 
The  recent  shortening  of  the  period  from  sixty  to  forty  years  appears 
justifiable  only  from  the  fact  that  in  practice  purchasers  are  generally 
found  willing  to  accept  a  forty  years'  title ;  in  like  manner  as,  in  the 
purchase  of  leasehold  estates,  a  condition  to  dispense  with  the  title  to  the 
freehold  was  usually  submitted  to. 

(o)  32  Hen.  VIII.  c.  2  ;  3  Black.  Com.  196. 
(p)  By  stat.  3  &  4  Will.  IV.  c.  27,  s.  36. 
(q)  Ante,  p.  252.     See  Sugd.  Vend.  &  Pur.  609,  11th  ed. 

(r)  See  Mr.  Brodie's  opinion,  1  Hayes's  Conveyancing  564;  Sugd.  Vend.  &  Pur.  305, 
13th  ed. 


Ut  cannot  be  said  that  there  is  any  the  colonial  governments;  though  it  is 
settled  rule  of  conveyancing  which,  in  the  presumed  that  if  a  satisfactory  title  for 
United  States,  requires  a  title  of  sixty  sixty  years  could  be  shown,  the  purchaser 
years  to  be  produced.  In  the  older  States,  would  be  compelled  to  accept  it  as  mar- 
ine title  is  often  traced  back  more  than  ketable. 
twice  that  period,  to  the  first  grants  from 


451  OF    TITLE. 

The  abstract  of  the  title  will  of  course  disclose  the  names  of  all  parties 
who,  besides  the  vendor,  may  be  interested  in  the  lands;  and  the  con- 
currence of  these  parties  must  be  obtained  by  him,  in  order  that  an 
unincumbered  estate  in  fee  simple  may  be  conveyed  to  the  purchaser. 
Thus,  if  the  lands  be  in  mortgage,  the  mortgagee  must  be  paid  off  out  of 
the  purchase-money,  and  must  join  to  relinquish  his  security  and  convey 
r*A."9~\  ^ae  *legal  estate. (s)1  If  the  wife  of  the  vendor  would,  on  his 
decease,  be  entitled  to  dower  out  of  the  lands,(0  she  must  release 
her  right  and  separately  acknowledge  the  purchase  deed. (it)  And  when 
lands  were  sold  by  trustees,  and  the  money  was  directed  to  be  paid  over  by 
them  to  certain  given  persons,  it  was  formerly  obligatory  on  the  purchaser 
to  see  that  such  persons  were  actually  paid  the  money  to  which  they 
were  entitled,  unless  it  were  expressly  provided  by  the  instrument  creating 
the  trust,  that  the  receipt  of  the  trustees  alone  should  be  an  effectual  dis- 
charge.(a:)  The  duty  thus  imposed  being  often  exceedingly  inconvenient, 
and  tending  greatly  to  prejudice  a  sale,  a  declaration  that  the  receipt  of 
the  trustees  should  be  an  effectual  discharge  was  usually  inserted,  as  a 
common  form,  in  all  settlements  and  trust  deeds.2  The  act  to  simplify 
the  transfer  of  property(?/)  provided  that  the  bond  fide  payment  to,  and 
the  receipt  of,  any  person,  to  whom  any  money  should  be  payable  upon 
any  express  or  implied  trust,  or  for  any  limited  purpose,  should  effectu- 
ally discharge  the  person  paying  the  same  from  seeing  to  the  application 
or  being  answerable  for  the  misapplication  thereof,  unless  the  contrary 
should  be  expressly  declared  by  the  instrument  creating  the  trust.  But 
this  act  was  shortly  afterwards  repealed,  without,  however,  any  provis- 
ion being  made  for  such  instruments  as  had  been  drawn  without  any 
receipt  clause  upon  the  faith  of  this  enactment. (2)  Subsequently  it  was 
enacted  that  the  bond  fide  payment  to  and  the  receipt  of  any  person  to 
whom  any  purchase  or  mortgage  money  should  be  payable  upon  any 
express  or  implied  trust,  should  effectually  discharge  the  person  paying 

the  same  *frorn  seeing  to  the  application  or  being  answerable 
r*453"|  .         .     . 

L  -1    for  the  misapplication  thereof,  unless   the  contrary  should  be 

expressly  declared  by  the  instrument  creating  the  trust  or  security. (a) 

(s)  Ante,  p.  424.  (t)  Ante,  p.  232. 

(u)  Ante,  p.  231.  (x)  Sugd.  Vend.  &  Pur.  541,  13th  ed. 

{y)  Stat.  7  &  8  Vict.  c.  76,  s.  10.  (z)  Stat.  8  &  9  Vict.  c.  106,  s.  1. 
(a)  Stat.  22  &  23  Vict.  c.  35,  s.  23. 

1  Unless,  of   course,   as   often   happens,     amount  is  deducted  from  that  of  the  con- 
the  purchaser  by  agreement  takes  subject     sideration  money.  R. 

to    the    incumbrance,    in   which    case    its         2  See   as  to  this   in   the  United    States, 

ante,  note  to  p.  435. 


OF   TITLE.  45d 


And  at  length  it  has  again  been  generally  provided  that  the  receipts  in 
writing  of  any  trustees  or  trustee  for  any  money  payable  to  them  or  him, 
by  reason  or  in  the  exercise  of  any  trusts  or  powers  reposed  or  vested  in 
them  or  him,  shall  be  sufficient  discharges  for  the  money  therein  ex- 
pressed to  be  received,  and  shall  effectually  exonerate  the  persons  paying 
such  money  from  seeing  to  the  application  thereof,  or  for  being  answer- 
able for  any  loss  or  misapplication  thereof. (6) 

Supposing,  however,  that,  through  carelessness   in  investigating  the 
title,  or  from  any  other  cause,  a  man  should  happen  to  become  pos- 
sessed of  lands  to  which  some  other  person  »  rightfully  en  tit ed      n 
this  case  it  is  evidently  desirable  that  the  person  so  rightfully  entitled 
to  the  lands  should  be  limited  in  the  time  during  which  he  may  bring 
an  action  to  recover  them.     To  deprive  a  man  of  that  which  he  has  long 
enjoyed,  and  still  expects  to  enjoy,  will  be  generally  doing  more  harm 
Iha/can  arise  from  forbidding  the  person  rightfully  entitled   bu    who 
has  long  been  ignorant  or  negligent  as  to  his  rights,  to  agitate  claims 
which  have  long  lain  dormant.     Various  acts  for  the  limitation  of  ac- 
tions and  suits  relating  to  real  property  have  accordingly  been  pas  ed 
at  different  times.(c)     By  a  statute  of  the  reign  of  George  IIL(<*)  the 
rights  of  the  crown  in  all  lands  *and  hereditaments  are  barred    ^^ 
after  the  lapse  of  sixty  years.     With  respect  to  other  persons, 
the  act  now  in  force(e)  was  passed  in  the  reign  of  King  William  IV.,  at 
the  suggestion  of  the  real  property  commissioners.     By  this  act  no  per- 
son can  bring  an   action  for  the  recovery  of  lands  but  within  twenty 
years  next  after  the  time  at  which  the  right  to  bring  such  action  shal 
have  first  accrued  to  him,  or  to  some  person  through  whom  he  claims ;  /) 
and,  as  to  estates  in  reversion  or  remainder,  or  other  future  estates,  the 
right  shall  be  deemed  to  have  first  accrued  at  the  time  at  which  any  sue  a 
estate  became  an  estate  in  possession.^)     But  a  written  acknowledg- 
ment of  the  title  of  the  person  entitled,  given  to  him  or  his  agent,  signed 

(b)  Stat   23  &  24  Vict.  c.  145,  s.  29.     This  act  extends  only  to  instruments  executed 
after  its  passing  (sect.  34).     It  passed  the  28th  of  August,  1860 

(c)  See  3  Black.  Com.  196,  306,  307  ;  stat.  21  Jac.  I.  c.  16  ;  Sugd.  Vend.  &  Pur.  608 

6t  S'sVaf  9Geo.  Ill:  c  16,  amended  by  stat.  24  &  25  Vict.  c.  62,  and  extended  to  the 
Duke  Cornwall  by  stats.' 23  *  24  Vict.  c.  53,  and  24  *  25  Vic,  c.  62,  s.  2,  and  ex- 
tended to  Ireland  by  stat.  39  &  40  Vict.  c.  37. 

(e)  Stat.  3  &  4  Will.  IV.  c.  27,  amended  as  to   mortgages  by  stat.  7  Will.  IV.  &  1 

^"stl  3  &  4  Will.  IV.  c.  27,  s.  2.     See  Nepeau  v.  Doe,  2  Mee.  *  Wels.  894. 
$  Sect.  3.     See  Doe  d.  Johnson  v.  Liversedge,  11  Mee.  *  Wels.  517. 


454  OF   TITLE. 

by  the  person  in  possession,  will  extend  the  time  of  claim  to  twenty  years 
from  such  acknowledgment.^)  If,  however,  when  the  right  to  bring  an 
action  first  accrues,  the  person  entitled  should  be  under  disability  to  sue 
by  reason  of  infancy,  coverture  (if  a  woman),  idiocy,  lunacy,  unsound- 
ness of  mind,  or  absence  beyond  seas,  ten  years  are  allowed  from  the 
time  when  the  person  entitled  shall  have  ceased  to  be  under  any  dis- 
ability, or  shall  have  died,  notwithstanding  the  period  of  twenty  years 
above  mentioned  may  have  expired,(7)  yet,  so  that  the  whole  period  do 
not,  including  the  time  of  disability,  exceed  forty  years  ;(k)  and  no  fur- 
ther time  is  allowed  on  account  of  the  disability  of  any  other  person 
than  the  one  to  whom  the  right  of  action  first  accrues. (If  When  any 
r*4.rr-i  lan(l  or  rent  is  vested  in  a  trustee  upon  any  *express  trust,  the 
right  of  the  cestui  que  trust  or  any  party  claiming  through  him 
to  bring  a  suit  against  the  trustee  or  any  person  claiming  through  him 
to  recover  such  land  or  rent,  is  deemed  to  have  first  accrued  at  and  not 
before  the  time  at  which  such  land  or  rent  shall  have  been  conveyed  to 
a  purchaser  for  a  valuable  consideration,  and  shall  then  be  deemed  to 
have  accrued  only  as  against  such  purchaser  and  any  person  claiming 
through  him.(m)  And  it  is  enacted  by  the  Supreme  Court  of  Judicature 
Act,  1873,(«)  that  no  claim  of  a  cestui  que  trust  against  his  trustee  for 
any  property  held  on  an  express  trust,  or  in  respect  of  any  breach  of 
such  trust,  shall  be  held  to  be  barred  by  any  statute  of  limitations.  The 
act  of  King  William  IV.  further  provides(o)  that  in  every  case  of  a  con- 
cealed fraud,  the  right  of  any  person  to  bring  a  suit  in  equity  for  the 
recovery  of  any  land  or  rent,  of  which  he,  or  any  person  through  whom 
he  claims,  may  have  been  deprived  by  such  fraud,  shall  be  deemed  to 
have  first  accrued  at  and  not  before  the  time  at  which  such  fraud  shall 

(h)  Sect.  14.     See  Doe  d.  Curzon  v.  Edmonds,  6  Mee.  &  Wels.  295. 

(t)  Sect.  16.     Borrows  v.  Ellison,  L.  R.  6  Ex.  Ch.  128.  (A.)  Sect.  17. 

(I)  Sect,  18. 

(m)  Sect.  25;  Commissioners  of  Charitable  Donations  v.  Wybrants,  2  Jones  &  Lat. 
L82  ;  Co*  v.  Dolman,  2  De  Gex,  M.  &  G.  592  ;  Snow  v.  Booth,  2  Kay  &  J.  132  ;  affirmed, 
8  De  Gex,  M.  &  G.  69. 

(n)  Stat.  36  &  37  Vict.  c.  66,  s.  25,  sub-section  (2). 

(o)  Stat.  3  &  l  Will.  IV.  c.  27,  s.  26;  Sturgis  v.  Morse,  24  Beav.  541  ;  affirmed,  3  De 
Gex  &  Jones  i. 

1  The  student  will  find  the  statutes  upon  of  these  local  acts  resemble  those  of  the 

the   subject  of   limitation   in    the  United  English   statutes   referred  to  in   the   text, 

States   collected  in  the  Appendix   to   Mr.  and  though  the  period  of  limitation  which 

Angell's    Treatise   on    Limitations,   and    a  they  establish  is  far  from  uniform,  yet  the 

note  on  what   constitutes  adverse  posses-  average  time  is  nearer  twenty  years  than 

Sion,  in  2  Smith's  Lead.  Cas.  597  (6th  Am.  any  other.     In  Pennsylvania  it  is  twenty- 

ed.),  Nepean  v.  Doe.    The  general  features  one  years.  R. 


OF   TITLE.  455 

be,  or  with  reasonable  diligence  might  have  been,(;j)  first  known  or  dis- 
covered ;  provided  that  nothing  in  that  clause  contained  shall  enable 
any  owner  of  lands  or  rents  to  have  a  suit  in  equity  for  the  recovery 
thereof  or  for  setting  aside  any  conveyance  thereof  on  account  of  fraud, 
against  any  bond  fide  purchaser  for  valuable  consideration,  who  has  not 
assisted  in  the  commission  of  such  fraud,  and  who  at  the  time  he  made 
the  purchase  did  not  know  and  had  no  reason  to  believe  that  any  „, 

*such  fraud  had  been  committed.^)  And  nothing  in  the  act 
contained  shall  be  deemed  to  interfere  with  any  rule  or  jurisdiction  of 
courts  of  equity  in  refusing  relief,  on  the  ground  of  acquiescence  or 
otherwise  to  any  person  whose  right  to  bring  a  suit  may  not  be  barred 
by  virtue  of  that  act.(r)  The  act  further  provides  that  whenever  a  mort- 
gagee has  obtained  possession  of  the  land  comprised  in  his  mortgage,  the 
mortgagor  shall  not  bring  a  suit  to  redeem  the  mortgage  but  within 
twenty  years  next  after  the  time  when  the  mortgagee  obtained  possession, 
or  next  after  any  written  acknowledgment  of  the  title  of  the  mortgagor, 
or  of  his  right  to  redemption,  shall  have  been  given  to  him  or  his  agent, 
signed  by  the  mortgagee. (s)  By  the  same  act  the  time  for  bringing  an 
action  or  suit  to  enforce  the  right  of  presentation  to  a  benefice  is  limited 
to  three  successive  incumbencies,  all  adverse  to  the  right  of  presentation 
claimed,  or  to  the  period  of  sixty  years,  if  the  three  incumbencies  do  not 
together  amount  to  that  time  ;{t)  but  whatever  the  length  of  the  incum- 
bencies, no  such  action  or  suit  can  be  brought  after  the  expiration  of 
100  years  from  the  time  at  which  adverse  possession  of  the  benefice  shall 
have  been  obtained. (u)  Money  secured  by  mortgage  or  judgment,  or 
otherwise  charged  upon  land,  and  also  legacies,  are  to  be  deemed  satisfied 
at  the  end  of  twenty  years,  if  no  interest  should  be  paid  or  written 
acknowledgment  given  in  the  mean  time,  (a;)1    The  right  to  rents,  whether 

(p)  Chetham  v.  Hoare,  L.  R.  9  Eq.  571.  (q)  Vane  v.  Vane,  L.  R.  8  Oh.  383. 

(r)  Stat.  3  &  4  Will.  IV.  c.  27,  s.  27. 

(*)  Sect.  28.  See  Hyde  v.  Dallaway,  2  Hare  528  ;  Trulock  v.  Robey,  12  Sim.  402  ; 
Lucas  v.  Deunison,  13  Sim.  584;  Stansfield  v.  Hobson,  16  Beav.  236. 

(t)  Sect.  30.  («)  Sect.  33. 

(x)  Sect.  40.  This  section  extends  to  legacies  payable  out  of  personal  estate  :  Shep- 
pard  v.  Duke,  9  Sim.  567.  And  in  this  case  absence  beyond  seas  is  now  no  disability. 
Stat.  19  &  20  Vict.  c.  97,  s.  10. 

i  It  will  be  remembered  that  long  pre-  twenty  years,  and  there  was  no  payment 

vious  to  this  statute  of  Will.  IV.  courts  of  interest  or  other  circumstance  to  show 

had,  by  analogy  to  the  statutes  of  limita-  that  it  was  still  in  force,  payment   or  re- 

tion  as  to  land,  established  the  artificial  lease  was  to  be  presumed:   Bother  hell  v. 

presumption  that  where  payment  of  a  bond  Bowes,  6  Modern  32;  Oswald  v.  Legh,   1 

or  other  specialty  was  not  demanded  for  Term   271;   and 'it   is  believed   that   this 


457  OF   TITLE. 

r*zt^7i  rents  service  or  *rents  charge,  and  also  the  right  to  tithes,  when 
L  -"in  the  hands  of  laymen,  (y)  is  subject  to  the  same  period  of  lim- 
itation as  the  right  to  land. (2)  And  in  every  case  where  the  period 
limited  by  the  act  is  determined,  the  right  of  the  person  who  might  have 
brought  any  action  or  suit  for  the  recovery  of  the  land,  rent,  or  advowson 
in  question  within  the  period,  is  extinguished. (a) 

A  new  Statute  of  Limitations  has  now  been  passed, (b)  which,  however, 
does  not  come  into  operation  until  the  1st  of  January,  1879. (c)  It  is 
called  the  Real  Property  Limitation  Act,  1874. (d)  This  act  shortens 
the  period  of  twenty  years  given  by  the  act  of  Will.  IV.  to  twelve 
years. (e)  It  also  shortens  further  the  time  allowed  to  estates  in  rever- 
sion or  remainder  or  other  future  estates,  in  cases  where  time  has  begun 
to  run  against  the  owner  of  the  particular  estate  ;  giving  twelve  years 
only  from  that  time,  or  six  years  from  the  vesting  in  possession,  which- 
ever period  shall  be  the  longer  ;  and  if  the  particular  tenant  is  barred, 
every  reversioner  claiming  under  any  deed,  will,  or  settlement,  executed 
or  taking  effect  after  the  time  when,  the  right  first  accrued  to  the  par- 
ticular tenant,  is  barred  also.(/)  The  period  of  ten  years  allowed  by 
the  former  statute  in  cases  of  disability  is  shortened  to  six  years. ( g) 
And  absence  beyond  seas  is  removed  from  the  list  of  disabilities. (A)  The 
total  period  of  forty  years  allowed  by  the  former  act  is  *reduced 
"-         -J    to  thirty. (i)    And  the  law  as  to  express  trusts(&)  is  again  altered 

(y)  Dean  of  Ely  v.  Bliss,  2  De  Gex,  M.  &  G.  459. 

(z)  Stat.  3  &  4  "Will.  IV.  c.  27,  s.  1.  As  to  the  time  required  to  support  a  claim  of 
modus  decimandi,  or  exemption  from  or  discharge  of  tithes,  see  stat.  2  &  3  Will.  IV.  c. 
100,  amended  by  stat.  4  &  5  Will.  IV.  c.  83  ;  Salkeld  v.  Johnston,  1  Mac.  &  Gord.  242. 
The  circumstances  under  which  lands  may  be  tithe  free  are  well  explained  in  Burton's 
Compendium,  ch.  6,  sect.  4. 

(a)  Sect.  34  ;  Scott  v.  Nixon,  3  Dru.  &  War.  388;  De  Beauvoir  v.  Owen,  5  Ex.  Rep. 
166. 

(b)  Stat.  37  &  38  Vict.  c.  57.  (c)  Sect.  12. 

(d)  Sect.  11.  (e)  Sects.  1,  6,  7,  8. 

(/)  Sect.  2.  (ff)  Sect.  3. 

(h)  Sect.  4.  (i)  Stat.  37  &  38  Vict.  c.  57,  s.  5. 

(k)  See  ante,  pp.  454,  455. 

common-law  rule  still  prevails  in  those  of  tion  or  knowledge  of  the  existence  thereof 

the  United  States  in  which  there  is  no  such  shall  have  been  made  within  that  period, 

statute  as  that  referred  to  in  the  text.     In  by  the  owner  of  the  premises  subject  to 

Pennsylvania,  by  an  act  passed  April  27th,  such  ground-rent,  annuity,  or  charge,  a  re- 

1855,  it  is  provided  that  in  all  cases  where  lease  or  extinguishment  thereof  shall  be 

no  payment,  claim,  or  demand  shall  have  presumed,  and  such  ground-rent,  annuity, 

been  made  on  account  of  or  for  any  ground-  or  charge   shall    thereafter   be   irrecover- 

rent,  annuity,  or  other  charge  upon  real  able.                                                              R. 
estate  for  twenty-one  years,  or  no  declara- 


OF    TITLE. 


458 


by  .an  enactment  that,  after  the  commencement  of  that  act,  no  action, 
suit,  or  other  proceeding  shall  be  brought  to  recover  any  sum  of  money 
or  legacy  charged  upon  or  payable  out  of  any  land  or  rent  at  law  or  in 
equity,  and  secured  by  an  express  trust,  or  to  recover  any  arrears  of 
rent  or  of  interest  in  respect  of  any  sum  of  money  or  legacy  so  charged 
or  payable  and  so  secured,  or  any  damages  in  respect  of  such  arrears, 
except  within  the  time  within  which  the  same  would  be  recoverable  if 
there  were  not  any  such  trust. (I) 

The  title  to  incorporeal  rights,  whether  appendant,  appurtenant,  or  in 
gross,  depends  upon  grant  or  upon  prescription  from  immemorial  user, 
by  which  a  grant  is  implied.     The  time  of  legal  memory  was  long  since 
fixed  at  the  beginning  of  the  reign  of  King  Richard  I.  by  analogy  to  the 
time  which,  by  a  statute  of  Edward  I.,(m)  was  fixed  for  the  limitation  of 
the  old  writ  of  right. (n)     And  in  the  absence  of  an  express  grant,  a  man 
might   either  prescribe   that  he   and   his   ancestors   had  from   time  im- 
memorial exercised  a  certain  right  in  gross,(o)  or  that  he,  being  seised 
in  fee  of  certain  lands,  and  all  those  whose  estate  he  had,  had  from  time 
immemorial  exercised  as  appendant  or  appurtenant  to  their  own  lands 
certain   rights,  such  as  rights  of  common  or  way,  over  certain   other 
lands.(p)     In  both  of  these  cases  proof  of  a  user  as  of  right,  for  twenty 
years  or  upwards,  was  formerly  considered  to  afford  a  presumption  of 
immemorial  enjoyment.^)     But  this  *presumption  might  be  ef-     ^^ 
fectually  rebutted  by  proof  that  the  enjoyment  had  in  fact  com- 
menced within  the  time  of  legal  memory  ;(r)  in  which  case  the  enjoyment 
for  centuries  would  go  for  nothing.     This  is  still  the  law  with  regard  to 
prescriptions  of  the  former  kind,  namely,  prescriptions  of  immemorial 
user  by  a  man  and  his  ancestors.^)     But  with  regard  to  prescriptions 
of  the  latter  kind,  where  the  owner  of  one  tenement,  sometimes  called 
the  dominant  tenement,  claims  to  exercise  some  right  over  another  tene- 
ment, called  the  servient  tenement,  he  may  either  still  prove  his  rights 
as  before,(£)  or  he  may  have  recourse  to  an  act  of  King  William  IV., (u) 

(l)  Sect.  10. 

(m)  Stat,  of  Westminster  the  First,  3d  Edw.  I.  c.  39. 

(n)  Litt.  sect.  170  ;  2  Inst.  238  ;  2  Bl.  Com. -31.     See  ante,  p.  450. 

(o)  Welcome  v.  Upton,  6  Mee.  &  Wels.  536 ;  Shuttleworth  v.  Le  Fleming,  19  C.  B.  N. 
S.  687  (E.  C.  L.  R.  vol.  115). 

(p)  Gateward's  Case,  6  Rep.  59  b. 

(q)  Rex  v.  Joliffe,  2  Barn.  &  Cress.  54  (E.  C.  L.  R.  vol.  9). 

(r)  See  Jenkins  v.  Harvey,  1  Cro.,  Mee.  &  Rose.  894,  895. 

(s)  Shuttleworth  v.  Le  Fleming,  ubi  supra. 

It)  Warwick  v.  Queen's  College,  Oxford,  L.  R.  6  Ch.  716,  728  ;  Aynsley  v.  Grover,  L. 
R.  10  Ch.  283.  '         («)  Stat.  2  &  3  Will.  IV.  c.  71. 


459  OF    TITLE. 

■which  has  materially  shortened  the  proof  required,  in  all  cases  where  a 
recent  uninterrupted  user  as  of  right  can  be  shown.  By  this  act  no 
right  of  common  or  other  profit  or  benefit,  called  in  law  French  profit  a 
prendre,  to  be  taken  and  enjoyed  from  or  upon  land  (except  tithes,  rent, 
and  services)  shall,  if  actually  taken  and  enjoyed  by  any  person  claiming 
right  thereto  without  interruption  for  thirty  years,  be  defeated  by  show- 
ing only  that  it  was  first  enjoyed  prior  thereto  ;  and  if  enjoyed  for  sixty 
years  the  right  is  made  absolute  and  indefeasible,  unless  it  shall 
appear  that  the  same  was  taken  and  enjoyed  by  some  consent  or  agree- 
ment expressly  made  or  given  for  that  purpose  by  deed  or  writing. (x) 
For  rights  of  way  and  other  easements,  watercourses  and  the  use  of 
water,  the  terms  are  twenty  and  forty  years  respectively  instead  of  thirty 
and  sixty  years. (y)  And  when  the  access  and  use  of  light  for  any 
dwelling-house,  workshop,  or  other  building,  shall  have  been  actually 
enjoyed  therewith  for  the  full  period  *of  twenty  years  without 
L  J    interruption,  the  right  thereto  shall  be  deemed  absolute  and  in- 

defeasible, any  local  usage  or  custom  to  the  contrary  notwithstanding, 
unless  it  shall  appear  that  the  same  was  enjoyed  by  some  consent  or 
agreement  expressly  made  or  given  for  that  purpose  by  deed  or  writing.(is) 
The  periods  mentioned  are  periods  next  before  some  action  or  suit  in 
which  the  claim  is  brought  in  question  ;  and  no  act  is  deemed  an  inter- 
ruption unless  submitted  to  or  acquiesced  in  for  one  year  after  the  party 
interrupted  shall  have  had  notice  thereof  and  of  the  person  making  or 
authorizing  the  same  to  be  made. (a)  The  time  during  which  any  person, 
otherwise  capable  of  resisting  any  claim,  shall  be  an  infant,  idiot,  non 
compos  mentis,  feme  covert,  or  tenant  for  life,  or  during  which  any 
action  or  suit  shall  have  been  pending,  and  which  shall  have  been  dili- 
gently prosecuted  until  abated  by  the  death  of  any  party  thereto,  is  ex- 
cluded from  the  above  periods,  except  when  the  claim  is  declared  absolute 
and  indefeasible  ;(b)  provided  that  in  the  case  of  ways  and  watercourses 
where  the  servient  tenement  shall  be  held  for  term  of  life  or  years  ex- 
ceeding three  years,  the  time  of  enjoyment  of  the  way  or  watercourse 
during  such  term  is  excluded  from  the  computation  of  the  period  of  forty 
years,  in  case  the  claim  shall,  within  three  years  next  after  the  end  or 
sooner  determination  of  such  term,  be  resisted  by  any  person  entitled  to 
any  reversion  expectant  on  the  determination  thereof.(c)  The  rights 
above  mentioned  may  be  lost  by  abandonment,  of  which  non-user  for 

(x)  Sect.  1.  {y)  Sect.  2. 

(z)  Stat.  2  &  3  Will.  IV.  c.  71,  s.  3. 

(a)  Sect.  4.     Bennison  v.  Cartwright,  5  Best  &  Smith  1  (E.  C.  L.  R.  vol.  117). 

(b)  Sect.  7.  '(c)  Sect.  8. 


OP   TITLE.  4^0 

twenty  years  or  upwards  is  generally  sufficient  evidence,  although  a 
shorter  period  will  suffice  if  an  intent  to  abandon  appeared ) 

*On  any  sale  or  mortgage  of  lands,  all  the  title-deeds  in  the    r*4fil1 
hands  of  the  vendor  or  mortgagor,  which  relate  exclusively  to  the  "*  ■* 

property  sold  or  mortgaged,  are  handed  over  to  the  purchaser  or  mort- 
gagee. The  possession  of  the  deeds  is  of  the  greatest  importance;  for  if 
the  deeds  were  not  required  to  be  delivered,  it  is  evident  that  property  might 
be  sold  or  mortgaged  over  and  over  again  to  different  persons  without  much 
risk  of  discovery.1  The  only  guarantee,  for  instance,  which  a  purchaser  has 
that  the  lands  he  contracts  to  purchase  have  not  been  mortgaged,  is  that 
the  deeds  are  in  the  possession  of  the  vendor.  It  is  true  that,  in  the  coun- 
ties of  Middlesex  and  York,  registries  have  been  established,  a  search  in 
which  will  lead  to  the  detection  of  all  dealings  with  the  property  \{e)  but 
these  registries,  though  existing  in  Scotland  and  Ireland,  do  not  extend 
to  the  remaining  counties  of  England  or  to  Wales.  Generally  speaking, 
therefore,  the  possession  of  the  deeds  is  all  that  a  purchaser  has  to 
depend  on :  in  most  cases  this  protection,  coupled  with  an  examination 
of  the  title  they  disclose,  is  found  to  be  sufficient ;  but  there  are  certain 
circumstances  in  which  the  possession  of  the  deeds  can  afford  no  security. 
Thus,  the  possession  of  the  deeds  is  no  safeguard  against  an  annuity  or 
rent-charge  payable  out  of  the  lands ;  for  the  grantee  of  a  rent-charge 
has  no  right  to  the  deeds  (/)  So  the  possession  *of  the  deeds,  r*4fi.2n 
showing  the  conveyance  to  the  vendor  of  an  estate  in  fee  simple,    L  '    "  J 

(d)  Moore  v.  Rawson,  3  Barn.  &  Cress.  332,  339  (E.  C.  L.  R.  vol.  10)  ;  The  Queen  v. 
Chorley,  12  Q.  B.  515,  519  (E.  C.  L.  R.  vol.  64) ;  Crossley  v.  Ltehtower,  L.  R.  3  Eq.  279 
2  Ch.  478.  ' 

(e)  See  ante,  p.  194. 

(/)  The  writer  met  lately  with  an  instance  in  which  lands  were,  from  pure  indavert- 
ence,  sold  as  free  from  incumbrance,  when  in  fact  they  were  subject  to  a  rent-charge, 
which  had  been  granted  by  the  vendor  on  his  marriage  to  secure  the  payment  of  the 
premiums  of  a  policy  of  insurance  on  his  life.  The  marriage  settlement  was,  as  usual, 
prepared  by  the  solicitor  for  the  wife  ;  and  the  vendor's  solicitor,  who  conducted  the 
sale,  but  had  never  seen  the  settlement,  was  not  aware  that  any  charge  had  been  made 
on  the  lands.  The  vendor,  a  person  of  the  highest  respectability,  was,  as  often  hap- 
pens, ignorant  of  the  legal  effect  of  the  settlement  he  had  signed.  The  charge  was 
fortunately  discovered  by  accident  shortly  before  the  completion  of  the  sale. 

1  These  and  the  following  observations  shown  by  the  author  to  attend  upon  its 

upon  the  subject  of  the  possession  of  title-  absence  ;  and  the  expense  of  registration, 

deeds    have,   by  reason  of  the  system  of  which,  in  his  opinion,  would  counterbal- 

registration  in  force  in  all  of  the  United  ance  these  evils,  is  insignificant,  compared 

States,  almost  no  application  here.     The  to  those  which   hang  upon   almost  every 

importance  of  such  a  system  can  hardly  transaction  of  conveyancing  in  England, 
be  better   exemplified   than   by  the   evils  R. 


462  OF   TITLE. 

is  no  guarantee  that  the  vendor  is  not  now  actually  seised  only  of  a  life 
estate ;  for,  since  he  acquired  the  property,  he  may,  very  possibly,  have 
married ;  and  on  his  marriage  he  may  have  settled  the  lands  on  himself 
for  his  life,  with  remainder  to  his  children.  Being  then  tenant  for  life, 
he  will,  like  every  other  tenant  for  life,  be  entitled  to  the  custody  of  the 
deeds  ;{g)  and  if  he  should  be  fraudulent  enough  to  suppress  the  settle- 
ment, he  might  make  a  conveyance  from  himself,  as  though  seised  in  fee, 
deducing  a  good  title,  and  handing  over  the  deeds ;  but  the  purchaser, 
having  actually  acquired  by  his  purchase  nothing  more  than  the  life 
interest  of  the  vendor,  would  be  liable,  on  his  decease,  to  be 'turned  out 
of  possession  by  his  children  ;  for,  as  marriage  is  a  valuable  consideration, 
a  settlement  then  made  cannot  be  set  aside  by  a  subsequent  sale  made  by 
the  settlor.  Against  such  a  fraud  as  this,  the  registration  of  deeds  seems 
the  only  protection.  In  some  cases,  also,  persons  are  entitled  to  an  inte- 
rest, which  they  would  like  to  sell,  but  are  prevented,  from  not  having 
any  deeds  to  hand  over.  Thus  if  lands  be  settled  on  A.  for  his  life,  with 
remainder  to  B.  in  fee,  A.  during  his  life  will  be  entitled  to  the  deeds ; 
and  B.  will  find  great  difficulty  in  disposing  of  his  reversion  at  an  ade- 
quate price ;  because,  having  no  deeds  to  give  up,  he  has  no  means  of 
satisfying  a  purchaser  that  the  reversion  has  not  previously  been  sold  or 
mortgaged  to  some  other  person.  If,  therefore,  B.'s  necessities  should 
oblige  him  to  sell,  he  will  find  the  want  of  a  registry  for  deeds  the  cause 
of  a  considerable  deduction  in  the  price  he  can  obtain.  It  may  here  be 
remarked  that,  as  few  people  would  sell  a  reversion  unless  they  were  in 
difficulties,  equity,  whenever  a  reversion  was  sold,  threw  upon  the 
*purchaser  the  onus  of  showing  that  he  gave  the  fair  market 
■-  ^  price  for  it.(A)  But  it  is  now  provided  that  no  purchase,  made 
bond  fide,  and  without  fraud  or  unfair  dealing,  of  any  reversionary 
interest  in  real  or  personal  estate,  shall  hereafter  be  opened  or  set  aside 
merely  on  the  ground  of  undervalue.(i) 

Where  the  title-deeds  relate  to  other  property,  and  cannot  conse- 
quently be  delivered  over  to  the  purchaser,  he  is  entitled,  at  the  expense 
of  the  vendor,  to  attested  copies  of  such  of  them  as  are  not  enrolled  in 
any  court  of  record  ;(&)  but  as  the  expense  thus  incurred  is  usually  great, 
it  is  in  general  thrown  on  the  purchaser,  by  express  stipulation  in  the 
contract.     The  purchaser  was  also  formerly  entitled  to  a  covenant  for 

(ff)  Sugd.  Vend.  &  Pur.  468,  11th  ed. ;  Leathes  v.  Leathes,  L.  R.  5  Ch.  D.  221. 
(h)  Lord  Aldborough  v.  Trye,  7  CI.  &  Fin.  436;  Davies  v.  Cooper,  5  My.  &  Cr.  270; 
Sugd.  Vend.  &  Pur.  235,  13th  ed. ;  Edwards  v.  Burt,  2  Dex,  M.  &  G.  55. 

(i)  Stat.  31  Vict.  c.  4.  (A)  Sugd.  Vend.  &  Pur.  373,  13th  ed. 


OF    TITLE. 


463 


the  production  of  the  title-deeds,  whenever  required  in  support  of  his 
title ;(l)  and  the  expense  of  this  covenant  formerly  fell  on  the  vendor, 
unless  thrown  on  the  purchaser  hy  express  stipulation.     But  the  Vendor 
and  Purchaser  Act,  1874,(w?)  now  provides(w)  that  in  the  completion  of 
any  contract  of  sale  of  land  made  after  the  31st  of  December,  1874,  and 
subject  to  any  stipulation  to  the  contrary  in  the  contract,  the  inability 
of  the  vendor  to  furnish  the  purchaser  with  a  legal  covenant  to  produce 
and  furnish  copies  of  documents  of  title  shall  not  be  an  objection  to  title, 
in  case  the  purchaser  will,  on  the  completion  of  the  contract,  have  an 
equitable   right  to    *the   production   of  such   documents;    and    r*464-i 
further  that  such  covenants  for  production  as  the  purchaser  can 
and  shall  require  shall  be  furnished  at  his  expense,  but  the  vendor  shall 
bear  the  expense  of  perusal  and  execution  on  behalf  of  and  by  himself 
and  necessary  parties,  other  than  the  purchaser ;  and  further  that  when 
the  vendor  retains  any  part  of  an  estate  to  which  any  documents  of  title 
relate,  he  shall  be  entitled  to  retain  such  documents.     The  covenant  for 
the  production  of  the  deeds  will  run,  as  it  is  said,  with  the  land;  that 
is,  the  benefit  of  such  a  covenant  will  belong  to  every  legal  owner  of  the 
land  sold  for  the  time  being ;  and  the  better  opinion  is  that  the  obligation 
to  perform  the  covenant  will  also  be  binding  on  every  legal  owner  of  the 
land,  in  respect  of  which  the  deeds  have  been  retained.(o)     Accordingly, 
when  a  purchase  is  made  without  delivery  of  the  title-deeds,  the  only 
deeds  that  can  accompany  the  lands  sold  are  the  actual  conveyance  of 
the  land   to  the  purchaser,   and  the  deed  of  covenant  to  produce  the 
former  title-deeds.     On   a  future    sale,  therefore,  these  deeds  will   be 
delivered  to  the  new  purchaser,  and  the  covenant,  running  with  the  land, 
will  enable  him  at  any  time  to  obtain  production  of  the  former  deeds  to 
which  the  covenant  relates. 

When  the  lands  sold  are  situated  in  either  of  the  counties  of  Middle- 
sex or  York,  search  is  made  in  the  registries  established  for  those 
counties  :(p)  this  search  is  usually  confined  to  the  period  which,  has 
elapsed  from  the  last  purchase-deed,— the  search  presumed  to  have  been 
made  on  behalf  of  the  former  purchaser  being  generally  relied  on  as  a 

(l)  Sugd  Vend.  &  Pur.  376,  13th  ed.;  Cooper  v.  Emery,  10  Sim.  609.  By  the  Stamp 
Act  1870  stat.  33  &  34  Vict.  c.  97,  the  stamp  duty  on  a  separate  deed  of  covenant  for 
the  production  of  title-deeds  on  a  sale  or  mortgage  is  10*.,  and  if  the  ad  valorem  duty 
on  the  sale  or  mortgage  is  less  than  that  sum,  then  a  duty  of  equal  amount  only  rs 
payable.     See  ante,  pp.  192,  422. 

(m)  Stat.  37  &  38  Vict,  c.  78.  («)  Sect.  2. 

(o)  Sugd.  Vend.  &  Pur.  377,  13th  ed.  (p)  Ante,  p.  194. 

27 


464  OP    TITLE. 

sufficient  guarantee  against  latent  incumbrances  prior  to  that  time  ;!  and 
a  memorial  of  the  purchase-deed  is  of  course  duly  registered  as  soon  as 
possible  after  its  execution.  As  to  lands  in  all  other  *counties, 
[  4boj  a|g(^  there  are  certain  matters  affecting  the  title,  of  which  every 
purchaser  can  readily  obtain  information.  Thus,  if  any  estate  tail  has 
existed  in  the  lands,  the  purchaser  can  always  learn  whether  or  not  it 
has  been  barred  ;  for  the  records  of  all  fines  and  recoveries,  by  which 
the  bar  was  formerly  effected, (q)  are  preserved  in  the  offices  of  the  Court 
of  Common  Pleas  ;  and,  now,  the  deeds  which  have  been  substituted  for 
those  assurances  are  enrolled  in  the  Chancery  Division  of  the  High 
Court.(r)  Conveyances  by  married  women  can  also  be  discovered  by  a 
search  in  the  index,  which  is  kept  in  the  Common  Pleas  Division  of  the 
High  Court,  of  the  certificates  of  the  acknowledgment  of  all  deeds 
executed  and  acknowledged  by  married  women. (*)  So,  we  have  seen 
that  debts  due  from  the  vendor,  or  any  former  owner,  to  the  crown,  prior 
to  the  1st  of  November,  1865,(£)  or  secured  by  judgment  prior  to  the 
23d  of  July,  1860,(w)  together  with  suits  which  may  be  pending  con- 
cerning the  land,(y)  all  which  are  incumbrances  on  the  land,  are  always 
sought  for  in  the  indexes  provided  for  the  purpose  in  the  office  of  the 
Common  Pleas  Division.  Life  annuities,  also,  which  may  have  been 
charged  on  the  land  for  money  or  money's  worth  prior  to  August,  1854, 
may  generally  be  discovered  by  a  search  in  the  office  of  the  Chancery 
Division  amongst  the  memorials  of  such  annuities. (a:)  And  those 
which  have  been  granted  since  the  26th  of  April,  1855,  otherwise 
than  by  marriage-settlement  or  will,  may  be  found  in  the  registry  estab- 
lished in  the  Common  *Pleas  Division. (y)  And,  lastly,  the 
L  -I  bankruptcy  or  insolvency  of  any  vendor  or  mortgagor  may  be 
discovered  by  a  search  in  the  records  of  the  Bankrupt  or  Insolvent 
Courts  ;  and  it  is  the  duty  of  the  purchaser's  or  mortgagee's  solicitor 

(q)  Ante,  pp.  45,  48. 

(r)  Ante,  pp.  48,  50.  As  to  fines  and  recoveries  in  Wales  and  Cheshire,  see  stat.  5 
and  6  Vict.  c.  32. 

(*)  Stat.  3  &  4  Will.  IV.  c.  74,  ss.  87,  88  ;  ante,  p.  231.  See  Jolly  v.  Handcock,  Ex. 
16  Jur.  550  ;  s.  c.  7  Exch.  Rep.  820. 

(t)  Ante,  p.  92.  (u)  Ante,  p.  88. 

(v)  Ante,  p.  93. 

(x)  Ante,  p.  331.  The  lands  charged  are  not,  however,  necessarily  mentioned  in  the 
memorial. 

(y)  Ante,  p.  332. 


1  This  presumption  would  be  far  from  produced,  it  is  proper  and  usual  to  carry 
being  a  safe  guide  ;  and  in  practice  here,  the  searches  back  as  far  as  the  circum- 
unless  the  prior  certificates  of  search  are     stances  of  the  title  may  require.  R. 


OF   TITLE.  466 

to  make  such  search,  if  he  has  any  reason  to  believe  that  the  vendor  or 
mortgagor  is  or  has  been  in  embarrassed  circumstances. (z)  The  acts  for 
relief  of  insolvent  debtors  are  now  repealed  and  the  court  abolished.(a) 

Some  mention  should  here  be  made  of  the  acts  which  have  been  passed 
with  a  view  to  the  simplification  of  titles,  and  to  facilitate  the  transfer  of 
land.     An  act  has  been  passed  "for  obtaining  a  declaration  of  title."(6) 
This  act  empowers  persons  claiming  to  be  entitled  to  land  in  possession 
for  an  estate  in  fee  simple,  or  claiming  power  to  dispose  of  such  an  estate, 
to  apply  to  the  Court  of  Chancery,  now  represented  by  the  Chancery 
Division  of  the  High   Court,  by  petition  in  a  summary  way  for  a  decla- 
ration of  title.     The  title  is  then  investigated  by  the  court;   and  if  the 
court  shall  be  satisfied  that  such  a  title  is  shown  as  it  would  have  com- 
pelled an  unwilling  purchaser  to  accept,  an  order  is  made  establishing 
the  title,  subject,  however,  to  appeal  as  mentioned  in  the  act.     This  act, 
though    seldom   resorted   to,    does   not   appear   to   have  been    repealed. 
Another  act  of  the  same  session  is  intituled  "An  Act  to  facilitate  the 
Proof  of  Title  to   and  the   Conveyance  of  Real  Estate."(c)     This  act 
established  an  office  of  land  registry,  and  contained  provisions  for  the 
official  investigation  of  titles,  and  for  the  registration  of  such  as  appeared 
to  be  good  and  marketable.     It  has,  however,  now  been   superseded  by 
the  Land  Transfer  Act,  1875,((i)  which  provides(e)  *that  after    r*467-| 
the  commencement  of  that  act,  which  took  place  on  the  1st  of 
January,  1876, (/)  application  for  the  registration  of  an  estate  under  the 
former  act  shall  not  be  entertained.    For  the  provisions  of  this  act  refer- 
ence should  be  made  to  the  act  itself.     Registration  under  this  act  is 
optional,  and  its  success  is  too  doubtful  to  justify  any  lengthened  account  of 
it  in  an  elementary  work  like  the  present.     The  system  of  official  investi- 
gation of  title  once  for  all  is  a  good  one,  provided  it  be  made  by  competent 
persons  and  under  sufficient  safeguards.     Compensation,  however,  ought 
to  be  made  to  those  whose  estates  may  by  any  error  be  taken  from  them 
in  their  absence.     When  land  is  once  registered  under  this  act,  it  ceases, 
if  situate  in  Middlesex  or  Yorkshire,  to  be  subject  to  the  county  registry 
of  deeds.(#)     If  the  act  should  lead  to  an  efficient  system  of  registration 
of  assurances  throughout  the  kingdom,  it  would,  in  the  author's  opinion, 
be  the  means  of  conferring  a  great  benefit  on  the  community.     This, 

(2)  Cooper  v.  Stephenson,  Q.  B.  16  Jur.  424;  21  L.  J.,  Q.  B.  292. 

(a)  Stat.  32  &  33  Vict.  c.  83.  (ft)  Stat.  25  &  26  Vict.  c.  67. 

(c)  Stat.  25  &  26  Vict.  c.  53.  (d)  Stat.  38  &  39  Vict.  c.  87. 

(e)  Sect.  125.  (/)  Sect-  3- 

Iff)  Sect.  127. 


467  OF   TITLE. 

however,  cannot  be  advantageously  done  without  resort  to  the  printing 
of  registered  deeds  and  of  probates  of  wills,  and  the  abolition  of  pay- 
ment by  length.  The  author's  views  on  this  subject  will  be  found  in  a 
paper  read  by  him  before  the  Juridical  Society,  on  the  24th  of  March, 
1862,  intituled  "  On  the  true  Remedies  for  the  Evils  which  affect  the 
Transfer  of  Land, "(A)  and  to  which  he  begs  to  refer  the  reader. 

Such  is  a  very  brief  and  exceedingly  imperfect  outline  of  the  methods 
adopted  in  this  country  for  rendering  secure  the  enjoyment  of  real  prop- 
erty when  sold  or  mortgaged.  It  may  perhaps  serve  to  prepare  the 
student  for  the  course  of  study  which  still  lies  before  him  in  this  direc- 
r*4fi£H  t*on'  ^^e  vama^e  treatise  of  Lord  *St.  Leonards  on  the  law 
of  vendors  and  purchasers  of  estates  will  be  found  to  afford 
nearly  all  the  practical  information  necessary  on  this  branch  of  the  law. 
The  title  to  purely  personal  property  depends  on  other  principles,  for  an 
explanation  of  which  the  reader  is  referred  to  the  author's  treatise  on 
the  principles  of  the  law  of  personal  property.  From  what  has  already 
been  said,  the  reader  will  perceive  that  the  law  of  England  has  two  dif- 
ferent systems  of  rules  for  regulating  the  enjoyment  and  transfer  of  prop- 
erty ;  that  the  laws  of  real  estate,  though  venerable  for  their  antiquity, 
are  in  the  same  degree  ill  adapted  to  the  requirements  of  modern  society  ; 
whilst  the  laws  of  personal  property,  being  of  more  recent  origin,  are 
proportionably  suited  to  modern  times.  Over  them  both  has  arisen  the 
jurisdiction  of  the  Court  of  Chancery,  by  means  of  which  the  ancient 
strictness  and  simplicity  of  our  real  property  laws  have  been  in  a 
measure  rendered  subservient  to  the  arrangements  and  modifications 
of  ownership  which  the  various  necessities  of  society  have  required. 
Added  to  this  have  been  continual  enactments,  especially  of  late  years, 
by  which  many  of  the  most  glaring  evils  have  been  remedied,  but  by 
which,  at  the  same  time,  the  symmetry  of  the  laws  of  real  property  has 
been  greatly  impaired.  Those  laws  cannot  indeed  be  now  said  to  form 
a  system  :  their  present  state  is  certainly  not  that  in  which  they  can  re- 
main. For  the  future,  perhaps  the  wisest  course  to  be  followed  would  be 
to  aim  as  far  as  possible  at  a  uniformity  of  system  in  the  laws  of  both 
kinds  of  property ;  and,  for  this  purpose,  rather  to  take  the  laws  of  per- 
sonal estate  as  the  model  to  which  the  laws  of  real  estate  should  be  made 
to  conform,  than  on  the  one  hand  to  preserve  untouched  all  the  ancient 
rules,  because  they  once  were  useful,  or,  on  the  other,  to  be  annually 
plucking  off,  by  parliamentary  enactments,  the  fruit  which  such  rules 
must,  until  eradicated,  necessarily  produce. 

(A)  Published  in  a  separate  form. 


APPENDIX. 


Referred  to,  p.  102. 


The  case  of  Muggleton  v.  Barnett  was  shortly  as  follows : (a) — Edward  Mug- 
gleton  purchased  in  1772  certain  copyhold  property,  held  of  a  manor  in  which 
the  custom  was  proved  to  be,  that  the  laud  desceuded  to  the  youngest  son  of  the 
person  last  seised,  if  he  had  more  than  one ;  and  if  no  son,  to  the  daughters  as 
parceners ;  and  if  no  issue,  then  to  the  youngest  brother  of  the  person  last  seised, 
and  to  the  youngest  son  of  such  youngest  brother.  There  was,  however,  no  formal 
record  upon  the  rolls  of  the  court  of  the  custom  of  the  manor  with  respect  to 
descents,  but  the  custom  was  proved  by  numerous  entries  of  admission.  The 
purchaser  died  intestate  in  1812,  leaving  two  granddaughters,  the  only  children 
of  his  only  son,  who  died  in  his  lifetime.  One  of  the  granddaughters  died  in- 
testate and  unmarried,  and  the  other  died  leaving  an  only  son,  who  died  in  1854 
without  issue,  and  apparently  intestate,  and  who  was  the  person  last  seised.  On 
his  death  the  youngest  son  of  the  youngest  brother  of  the  purchaser  brought  an 
ejectment,  and  the  Court  of  Exchequer,  by  two  against  one,  decided  against  him. 
On  appeal,  this  decision  was  confirmed  by  the  Court  of  Exchequer  Chamber,  by 
four  judges  against  three.  But  much  as  the  judges  diifered  amongst  themselves 
as  to  the  extent  of  the  custom  amongst  collaterals,  they  appear  to  have  all  agreed 
that  the  act  to  amend  the  law  of  inheritance  had  nothing  to  do  with  the  matter. 
The  act,  however,  expressly  extends  to  lands  descendible  according  to  the  custom 
of  borough- English  or  any  other  custom;  and  it  enacts  that  *in  every  ^.-^ 
case  descent  shall  be  traced  from  the  purchaser.  Under  the  old  law, 
seisin  made  the  stock  of  descent.  By  the  new  law,  the  purchaser  is  substituted 
in  every  case  for  the  person  last  seised.  The  legislature  itself  has  placed  this 
interpretation  upon  the  above  enactment.  A  well-known  statute,  commonly 
called  the  Wills  Act,(i)  enacts  "  that  it  shall  be  lawful  for  every  person  to 
devise  or  dispose  of  by  his  will,  executed  in  manner  hereinafter  required,  all  real 
estate  which  he  shall  be  entitled  to,  either  at  law  or  in  equity,  at  the  time  of  his 
death,  and  which,  if  not  so  devised  or  disposed  of  would  devolve  upon  the  heir 
at  law  or  customary  heir  of  him,  or,  if  he  became  entitled  by  descent,  of  his  ances- 
tor." Now  the  old  doctrine  of  possessio  fratris  was  this — that  if  a  purchaser 
died  seised,  leaving  a  son  and  a  daughter  by  his  first  wife,  and  a  son  by  his  sec- 

(a)  The  substance  of  these  observations  has  already  appeared  in  letters  to  the  editor 
of  the  "Jurist"  newspaper,  4  Jur.  N.  S.,  Part  2,  pp.  5,  56. 
(6)  Stat.  7  Will.  IV.  &  1  Vict.  c.  26,  s.  3,  ante,  p.  204. 


470  APPENDIX. 

ond  wife,  and  the  eldest  son  entered  as  heir  to  his  father,  the  possession  of  the 
son  made  his  sister  of  the  whole  blood  to  inherit  as  his  heir,  in  exclusion  of  his 
brother  of  the  half-blood ;  but  if  the  eldest  son  did  not  enter,  his  brother  of  the 
half-blood  was  entitled  as  heir  to  his  father,  the  purchaser.  This  doctrine  was 
abolished  by  the  statute.  Descent  in  every  case  is  to  be  traced  from  the  pur- 
chaser. Let  the  eldest  son  enter,  and  remain  ever  so  long  in  possession,  his 
brother  of  the  half-blood  will  now  be  entitled,  on  his  decease,  in  preference  to 
his  sister  of  the  whole  blood,  not  as  his  heir,  but  as  heir  to  his  father. (c) 

Let  us  now  take  the  converse  case  of  a  descent  according  to  the  custom  of 
borough-English,  and  let  the  purchaser  die  intestate,  leaving  a  son  by  his  first 
wife,  and  a  son  and  daughter  by  his  second  wife.  Here  it  is  evident  that  the 
youngest  son  has  a  right  to  enter  as  customary  heir.  He  enters  accordingly, 
and  dies  intestate  and  without  issue.  Who  is  the  next  heir  since  the  statute  ? 
Clearly  the  brother  of  the  half-blood,  for  he  is  the  customary  heir  of  the  pur- 
chaser. As  the  common  law,  which  is  the  general  custom  *of  the 
L'  '  J  realm,  was  altered  by  the  statute,  and  a  person  became  entitled  to  in- 
herit who  before  had  no  right,  so  the  custom  of  borough-English,  and  every 
other  special  custom,  being  expressly  comprised  in  the  statute,  is  in  the  same 
manner  altered ;  and  the  stock  of  descent,  which  was  formerly  the  person  last 
seised,  is  now,  in  every  case,  the  purchaser  and  the  purchaser  only. 

Suppose,  therefore,  that  Edward  Muggleton,  the  purchaser,  who  died  in  1812, 
had  left  a  son  by  his  first  wife,  and  a  son  and  a  daughter  by  his  second  wife, 
and  that  the  youngest  son,  having  entered  as  customary  heir,  died  intestate  in 
1854 — who  would  be  entitled?  Clearly,  the  elder  son,  as  customary  heir,  being 
of  the  male  sex.  in  preference  to  the  daughter.  Before  the  act  the  sister  of  the 
whole  blood  would  have  inherited,  as  customary  heir  to  her  younger  brother, 
and  the  elder  brother,  being  of  the  half-blood  to  the  person  last  seised,  could  not 
have  inherited  at  all ;  but  since  the  act  the  descent  is  traced  from  the  purchaser, 
and  the  elder  brother  would,  accordingly,  be  entitled,  not  as  heir  to  his  half- 
brother,  but  as  heir  to  his  father.  The  act  then  breaks  in  upon  the  custom. 
By  the  custom  before  the  act  the  land  descended  to  the  sister  of  the  person  last 
seised,  in  default  of  brothers  of  the  whole  blood.  By  the  act  the  purchaser  is 
substituted  for  the  person  last  seised,  and  whoever  would  be  entitled  as  heir  to 
the  purchaser,  if  he  had  just  died  seised,  must  now  be  entitled  as  his  heir,  how- 
ever long  ago  his  decease  may  have  taken  place. 

Let  us  put  another  case :  Suppose  the  father  of  Edward  Muggleton,  the  pur- 
chaser, had  been  living  in  1854,  when  his  issue  failed.  It  is  clear  that  under 
the  act  the  father  would  have  been  entitled  to  inherit,  notwithstanding  the  cus- 
tom. Here,  again,  the  custom  would  have  been  broken  in  upon  by  the  act,  and 
a  person  would  have  been  entitled  to  inherit  who  before  was  not. 

(c)  See  Sugden's  Real  Property  Statutes,  pp.  280,  281  (1st  ed.)  :  267,  368  (2d  ed.). 


APPENDIX.  471 

Suppose,  again,  that  the  father  of  Edward  Muggleton  had  been  the  purchaser, 
and  that  Edward  Muggleton  was  his  *youngest  son,  and  that  the  estate, 
instead  of  being  a  fee  simple,  had  been  an  estate  tail.  Estates  tail,  it  is 
well  known,  follow  customary  modes  of  descent  in  the  same  manner  as  estates  in 
fee.  The  purchaser,  however,  or  donee  in  tail,  is  and  was,  both  under  the  new 
law  and  under  the  old,  the  stock  of  descent.  The  courts  appear  to  have  been 
satisfied  that  in  lineal  descents  according  to  the  custom  the  youngest  was  invari- 
ably preferred.  It  is  clear,  therefore,  that,  when  the  issue  of  Edward  Muggleton 
failed  in  1854,  the  land  would  have  descended  to  the  plaintiff  as  youngest  son  of 
the  next  youngest  son  of  the  purchaser,  although  the  plaintiff  was  but  the  first 
cousin  twice  removed  of  the  person  last  seised. 

The  change,  however,  which  the  act  has  accomplished  is  simply  to  assimilate 
the  descent  of  estates  in  fee  to  that  of  estates  tail.  The  purchaser  is  made  the 
stock  in  lieu  of  the  person  last  seised.  It  is  evident,  therefore,  that  upon  the 
supposition  last  put,  of  the  father  of  Edward  Muggleton  being  the  purchaser, 
although  the  estate  was  an  estate  in  fee,  the  plaintiff  would  have  been  entitled 
as  customary  heir. 

The  step  from  this  case  to  that  which  actually  occurred  is  very  easy.  On 
failure  of  the  issue  of  the  purchaser  (whether  after  his  decease  or  in  his  lifetime 
it  matters  not),  the  heir  to  be  sought  is  the  heir  of  the  purchaser,  and  not  the 
heir  of  the  person  last  seised ;  and  if  the  descent  be  governed  by  any  special 
custom,  then  the  customary  heir  of  the  purchaser  must  be  sought  for.  Who, 
then,  was  the  customary  heir  of  Edward  Muggleton,  the  purchaser?  The  case 
in  Muggleton  v.  Barnett  expressly  states  that  the  land  descends,  if  no  issue,  to 
the  youngest  son  of  the  youngest  brother  of  the  person  last  seised,  that  is,  of  the 
stock  of  descent.  There  is  no. magic  in  the  phrase  "  last  seised."  These  words 
were  evidently  used  in  the  statement  of  the  custom  as  they  would  have  been 
used  before  the  act  in  a  statement  of  the  common  law.  It  would  have  been  said 
that  the  land  descends,  for  want  of  issue,  to  the  eldest  son  of  the  eldest  brother 
of  the  person  last  seised.  It  would  *have  been  taken  for  granted  that  p*^-. 
every  body  knew  that  seisin  made  the  stock.  The  law,  however,  is  now 
altered  in  this  respect.  The  purchaser  only  is  the  stock.  If  Edward  Muggleton 
had  died  without  leaving  issue,  the  plaintiff  clearly  would  have  been  entitled. 
His  issue  fails  after  his  decease ;  but  so  long  as  he  is  the  stock,  the  same  person 
under  the  same  custom  must  of  necessity  be  his  heir. 

'  It  was  expressly  stated  in  the  case  that  there  was  no  formal  record  with  re- 
spect to  descents.  This  is  important,  as  showing  that  the  person  last  seised  was 
mentioned  in  the  statement  of  the  custom  simply  in  accordance  with  the  ordinary 
rule  of  law,  that  the  person  last  seised  was  the  stock  of  descent  prior  to  the  act. 
If,  however,  there  had  been  such  a  formal  record,  still  Edward  Muggleton,  the 
purchaser,  died  seised.     If  he  had  not  died  seised,  it  might  be  said,  according 


473 


APPENDIX. 


to  the  strict  construction  placed  upon  the  records  of  customary  descent,  that  the 
custom  did  not  apply,  and  that  his  heir  according  to  the  common  law  was  en- 
titled, (f?)  But  in  the  present  case  the  custom  is  expressly  stated  to  be  gathered 
from  admissions  only ;  and  so  long  as  the  person  last  seised  was  by  law  the  stock 
of  descent,  it  is  evident  that  a  statement  of  the  custom,  as  applying  to  the  per- 
son last  seised,  was  merely  a  statement  with  reference  to  the  stock  of  descent  as 
then  existing.  The  act  alters  the  stock  of  descent,  and  so  far  alters  the  custom. 
It  substitutes  the  purchaser  for  the  person  last  seised,  whatever  may  be  the  cus- 
tom as  to  descents.  It  follows,  therefore,  that  the  plaintiff  in  Muggleton  v. 
Barnett,  being  the  customary  heir  of  the  purchaser,  was  entitled  to  recover. 

Since  these  observations  were  written  the  following  remarks  have  been  made 
by  Lord  St.  Leonards,  on  the  case  of  Muggleton  v.  Barnett : — "  In  the  result,  the 
Exchequer  and  Exchequer  Chamber,  with  much  diversity  of  opinion  as  to  the 
extent  of  the  custom,  decided  the  case  against  the  claimant,  who  claimed  as  heir 
l~*4741  ky  tne  custom  to  the  *  last  jmr  chaser,  which  he  was;  because  he  was  not 
heir  by  the  custom  to  the  person  last  seised.  And  yet  the  act  extends 
to  all  customary  tenures,  and  alters  the  descent  in  all  such  cases  as  well  as  in 
descents  by  the  common  law,  by  substituting  the  last  purchaser  as  the  stock 
from  whom  the  descent  is  to  be  traced  for  the  person  last  seised.  The  court, 
perhaps,  hardly  explained  the  grounds  upon  which  they  held  the  statute  not  to 
apply  to  this  case. "(e) 


[*475]  *APPENDIX  B. 

Referred  to,  p.  113. 

The  point  in  question  is  as  follows  :(a)  Suppose  a  man  to  be  the  purchaser  of 
freehold  land,  and  to  die  seised  of  it  intestate,  leaving  two  daughters,  say  Susan- 
nah and  Catherine,  but  no  sons.  It  is  clear  that  the  land  will  then  descend  to 
the  two  daughters,  Susannah  and  Catherine,  in  equal  shares  as  coparceners.  Let 
us  now  suppose  that  the  daughter  Catherine  dies  on  or  after  the  1st  of  January, 
1834,  intestate,  and  without  having  disposed  of  her  moiety  in  her  lifetime,  leav- 
ing issue  one  son.     Under  these  circumstances  the  question  arises,  to  whom  shall 

(d)  Payne  v.  Barker,  0.  Bridge.  18  :  Rider  v.  Wood,  1  Kay  &  J.  644. 

(ej  Lord  St.  Leonards'^  Essay  on  the  Real  Property  Statutes,  p.  271  (2d  ed.). 

(a)  The  substance  of  the  following  observations  has  already  appeared  in  the  "Jurist" 
newspaper  for  February  28,  1846.  The  point  has  since  been  expressly  decided,  in  ac- 
cordance with  the  opinion  for  which  the  author  has  contended,  in  Cooper  v.  France, 
V.-C.  E.,  14  Jur.  214;  L.  J.  N.  S.  Ch.  313,  the  authority  of  which  decision  is  recog- 
nized by  Lord  St.  Leonards  in  his  Essay  on  the  Real  Property  Statutes,  p.  282  (1st  ed.), 
269  (2d  ed.),  and  in  Leewin  v.  Leewin,  C.  P.,  21  Nov.,  1874.  But  the  author  has  not 
thought  it  desirable  to  omit  his  remarks. 


APPENDIX.  475 

the  inheritance  descend  ?  The  act  to  amend  the  law  of  inheritance  enacts  "  that 
in  every  case  descent  shall  be  traced  from  the  purchaser."  In  this  case  Catherine 
is  clearly  not  the  purchaser,  but  her  father;  and  the  descent  of  Catherine's 
moiety  is  accordingly  to  be  traced  from  him.  Who,  then,  as  to  this  moiety,  is 
his  heir '(  Supposing  that,  instead  of  the  moiety  in  question,  some  other  land 
were,  after  Catherine's  decease,  to  be  given  to  the  heir  of  her  father,  such  heir 
would  clearly  be  Susannah,  the  surviving  daughter,  as  to  one  moiety  of  the  land, 
and  the  son  of  Catherine  as  to  the  other  moiety.  It  has  been  argued,  then,  that 
the  moiety  which  belonged  to  Catherine,  by  descent  from  her  father,  must,  on 
her  ^decease,  descend  to  the  heir  of  her  father,  in  the  same  manner  as  r*Ancr\ 
other  land  would  have  done  had  she  been  dead  in  her  father's  lifetime ; 
that  is  to  say,  that  one  moiety  of  Catherine's  moiety  will  descend  to  her  surviving 
sister  Susannah,  and  the  other  moiety  of  Catherine's  moiety  will  descend  to  her 
son.  But  the  following  reasoning  seems  to  show  that,  on  the  decease  of  Cathe- 
rine, her  moiety  will  not  descend  equally  between  her  surviving  sister  and  her 
own  son,  but  will  descend  entirely  to  her  son. 

In  order  to  arrive  at  our  conclusion  it  will  be  necessary  to  inquire,  first,  into 
the  course  of  descent  of  an  estate  tail,  under  the  circumstances  above  described, 
according  to  the  old  law ;  secondly,  into  the  course  of  descent  of  an  estate  in  fee 
simple,  according  to  the  old  law,  supposing  the  circumstances  as  above  described, 
with  this  qualification,  that  neither  Susannah  nor  Catherine  shall  be  considered 
to  have  obtained  any  actual  seisin  of  the  lands.  And,  when  these  two  points 
shall  have  been  satisfactorily  ascertained,  we  shall  then  be  in  a  better  position  to 
place  a  correct  interpretation  on  the  act  by  which  the  old  law  of  inheritance  has 
been  endeavored  to  be  amended. 

1.  First,  then,  as  to  the  course  of  descent  of  an  estate  tail  accoi'ding  to  the 
old  law.  Let  us  suppose  lands  to  have  been  given  to  the  purchaser  and  the 
heirs  of  his  body.  On  his  decease,  his  two  daughters,  Susannah  and  Catherine, 
are  clearly  the  heirs  of  his  body,  and  as  such  will  accordingly  have  become 
tenants  in  tail  each  of  a  moiety.  Now  there  is  no  proposition  more  frequently 
asserted  in  the  old  books  than  this  :  that  the  descent  of  an  estate  tail  is  per 
forma m  doni  to  the  heirs  of  the  body  of  the  donee.  On  the  decease  of  one  heir 
of  the  body,  the  estate  descends  not  to  the  heir  of  such  heir,  but  to  the  heir  of 
the  body  of  the  original  donee  per  formam  doni.  Suppose,  then,  that  Catherine 
should  die,  her  moiety  would  clearly  have  descended,  by  the  old  law,  to  the  heir 
of  the  body  of  her  father,  the  original  donee  in  tail.  Whom,  then,  under  the 
above  circumstances,  did  the  old  law  consider  to  be  the  heir  of  his  body  quoad 
this  moiety?  The  Tenures  of  Littleton,  *as  explained  by  Lord  Coke's  r^j^Y-i 
Commentary,  supply  us  with  an  answer.  Littleton  says,  "  Also,  if  lauds 
or  tenements  be  given  to  a  man  in  tail  who  hath  as  much  land  in  fee  simple,  and 
hath  issue  two  daughters,  and  die,  and  his  two  daughters  make  partition  be- 
tween them,  so  as  the  land  in  fee  simple  is  allotted  to  the  younger  daughter,  in 


477  APPENDIX. 

allowance  for  the  land  and  tenements  in  tail  allotted  to  the  elder  daughter ;  if, 
after  such  partition  made,  the  younger  daughter  alieneth  her  land  in  fee  simple 
to  another  in  fee,  and  hath  issue  a  son  or  daughter,  and  dies,  the  issue  may 
enter  into  the  lands  in  tail,  and  hold  and  occupy  them  in  purparty  with  her 
aunt."(7>)  On  this  case  Lord  Coke  makes  the  following  comment : — "  The  eld- 
est coparcener  hath,  by  the  partition,  and  the  matter  subsequent,  barred  herself 
of  her  right  in  the  fee-simple  lands,  insomuch  as  when  the  youngest  sister  alien- 
eth the  fee  simple  lands  and  dieth,  and  her  issue  entereth  into  half  the  lands 
entailed,  yet  shall  not  the  eldest  sister  enter  into  half  of  the  lands  in  fee  simple 
upon  the  alienee."(c)  It  is  evident,  therefore,  that  Lord  Coke,  though  well 
acquainted  with  the  rule  that  an  estate  tail  should  descend  per  formam  doni,  yet 
never  for  a  moment  supposed  that,  on  the  decease  of  the  younger  daughter,  her 
moiety  would  descend  half  to  her  sister,  and  half  to  her  issue;  for  he  presumeu, 
of  course,  that  the  issue  would  enter  into  half  the  lands  entailed,  that  is,  into 
the  whole  of  the  moiety  of  the  lands  which  had  originally  belonged  to  their 
mother.  After  the  decease  of  the  younger  sister,  the  heirs  of  the  body  of  her 
father  were  no  doubt  the  elder  sister  and  the  issue  of  the  younger ;  but,  as  to  the 
moiety  which  had  belonged  to  the  younger  sister,  this  as  clearly  was  not  the  case; 
the  heir  of  the  body  of  the  fither  to  inherit  this  moiety  was  exclusively  the  issue 
of  such  younger  daughter,  who  were  entitled  to  the  whole  of  it  in  the  place  of 
their  parent.  This  incidental  allusion  of  Lord  Coke  is  as  strong,  if  not  stronger, 
than  a  direct  assertion  by  him  of  the  doctrine :  for  it  seems  to  show  that  a  doubt 
on  the  subject  never  entered  into  his  mind. 

r*A>7QT  *^fc  ^ie  en(^  °^  t^ie  sec^on  °f  Littleton,  to  which  we  have  referred, 
*-  J  it  is  stated  that  the  contrary  is  holden,  M.,  10  Hen.  VI.  soil;  that  the 
heir  may  not  enter  upon  the  parcener  who  hath  the  entailed  land,  but  it  is  put 
to  a  formedou.  On  this  Lord  Coke  remarks^)  that  it  is  no  part  of  Littleton, 
and  is  contrary  to  law;  and  that  the  case  is  not  truly  vouched,  for  it  is  not  in 
10  Hen.  VI.,  but  in  20  Hen.  VI.,  and  yet  there  is  but  the  opinion  of  Newton, 
obiter,  by  the  way.  On  referring  to  the  case  in  the  Year  Books,  it  appears  that 
Yelverton  contended  that,  if  the  sister,  who  had  the  fee  simple,  aliened,  and  had 
issue,  and  died,  the  issue  would  be  barred  from  the  laud  entailed  by  the  partition, 
which  would  be  a  mischief.  To  this  Newton  replied,  "  No,  sir;  but  he  shall  have 
formedon,  and  shall  recover  the  half"(e)  Newton,  therefore,  though  wrong  in 
supposing  that  a  formedon  was  necessary,  thought  equally  with  Lord  Coke,  that 
a  moiety  of  the  land  was  the  share  to  be  recovered.  This  appears  to  be  the 
Newton  whom  Littleton  calls(/)  "  my  master,  Sir  Richard  Newton,  late  Chief 
Justice  of  the  Common  Pleas." 

There   is   another   section   in   Littleton,  which,   though    not    conclusive,   yet 

(b)  Litt.  sect.  260.  (c)  Co.  Litt.  172  b. 

(d)  Co.  Litt.  173  a.  (e)  Year  Book,  20  Hen.  VI.  14  a. 

(/)  Sect.  729. 


APPENDIX.  478 

strongly  tends  in  the  same  direction ;  namely,  section  255,  where  it  is  said  that, 
if  the  tenements  whereof  two  parceners  make  partition  "he  to  them  in  fee  tail, 
and  the  part  of  the  one  is  better  in  yearly  value  than  the  part  of  the  other,  albeit 
they  be  concluded  during  their  lives  to  defeat  the  partition,  yet,  if  the  parcener 
who  hath  the  lesser  part  in  value  hath  issue  and  die,  the  issue  may  disagree  to 
the  partition,  and  enter  and  occupy  in  common  the  other  part  which  was  allotted 
to  her  aunt,  and  so  the  other  may  enter  and  occupy  in  common  the  other  part 
allotted  to  her  sister,  &c,  as  if  no  partition  had  been  made."  Had  the  law  been 
that,  on  the  decease  of  one  sister,  her  issue  were  entitled  only  to  an  undivided 
fourth  part,  it  seems  strange  that  Littleton  should  not  have  stated  that  they 
might  enter  *into  a  fourth  only,  and  that  the  other  sister  might  occupy  p^g-i 
the  remaining  three-fourths. 

In  addition  to  these  authorities,  there  is  a  modern  case,  which,  when  atten- 
tively considered,  is  an  authority  on  the  same  side ;  namely,  Doe  d.  Gregory  and 
Geere  v.  Whichelo.(<7)  This  case,  so  far  as  it  relates  to  the  point  in  question, 
was  as  follows :  Richard  Lemmon  was  tenant  in  tail  of  certain  premises,  and 
died,  leaving  issue  by  his  first  wife  one  son,  Richard,  and  a  daughter,  Martha; 
and  by  his  second  wife  three  daughters,  Anne,  Elizabeth,  and  Grace.  Richard 
Lemmon,  the  son,  as  heir  of  the  body  of  his  father,  was  clearly  tenant  in  tail  of 
the  whole  premises  during  his  life.  He  died,  however,  without  issue,  leaving 
his  sister  Martha  of  the  whole  blood,  and  his  three  sisters  of  the  half-blood,  him 
surviving.  Martha  then  intermarried  with  John  Whichelo,  and  afterwards 
died,  leaving  John  Whichelo,  the  defendant,  her  eldest  son  and  heir  of  her  body. 
John  Whichelo,  the  defendant,  then  entered  into  the  whole  of  the  premises, 
under  the  impression  that  as  he  was  heir  to  Richard  Lemmon,  the  son,  he  was 
entitled  to  the  whole.  In  this,  however,  he  was  clearly  mistaken  ;  for  the 
descent  of  an  estate  tail  is,  as  we  have  said,  traced  from  the  purchaser,  or  first 
donee  in  tail,  per  form  am  doni.  The  heirs  of  the  purchaser,  Richard  Lemmon, 
the  father,  were  clearly  his  four  daughters,  or  their  issue ;  for  the  daughters  by 
the  second  wife,  though  of  the  half-blood  to  their  brother  by  the  former  wife, 
were,  equally  with  their  half-sister  Martha,  of  the  whole-blood  to  their  common 
father.  The  only  question  then  is,  in  what  shares  the  daughters  or  their  issue 
became  entitled.  At  the  time  of  the  ejectment  all  the  daughters  were  dead. 
Elizabeth  was  dead,  without  issue;  whereupon  her  one  equal  fourth  part  de- 
volved, without  dispute,  on  her  three  sisters,  Martha,  Anne,  and  Grace :  each  of 
these,  therefore,  became  entitled  to  one  equal  third  part.  Martha,  as  we  have 
seen,  died,  leaving  John  Whichelo,  the  defendant,  her  eldest  son  and  heir  of 
her  body.  Anne  died,  leaving  James  Gregory,  one  of  the  lessors  of  the  plain- 
tiff, her  *grandson  and  heir  of  her  body;  and  Grace  died,  leaving  ptuooi 
Diones  Geere,  the  other  lessor  of  the  plaintiff,  her  only  son  and  heir  of 
her  body.  Under  these  circumstances,  an  action  of  ejectment  was  brought  by 
James  Gregory  and  Diones  Geere ;  and  on  a  case  reserved  for  the  opinion  of  the 

(g)  8  T.  R.  211. 


480  APPENDIX. 

court,  a  verdict  was  directed  to  be  entered  for  the  plaintiff  for  two-thirds. 
Neither  the  counsel  engaged  in  the  cause,  nor  the  court,  seem  for  a  moment  to 
have  imagined  that  James  Gregory  and  Diones  Geere  could  have  been  entitled 
to  any  other  shares.  It  is  evident,  therefore,  that  the  court  supposed  that,  on 
the  decease  of  Martha,  the  heir  of  the  body  of  the  purchaser,  as  to  her  share, 
was  her  son,  John  Whichelo,  the  defendant;  that,  on  the  decease  of  Anne,  the 
heir  of  the  body  of  the  purchaser,  as  to  her  share,  was  James  Gregory,  her 
grandson ;  and  that,  on  the  decease  of  Grace,  the  heir  of  the  body  of  the  pur- 
chaser, as  to  her  share,  was  her  son,  Dioues  Geere.  On  no  other  supposition 
can  the  judgment  be  accounted  for,  which  awarded  one-third  of  the  whole  to 
the  defendant,  John  Whichelo,  one  other  third  to  James  Gregory,  and  the  re- 
maining third  to  Diones  Geere.  For  let  us  suppose  that,  on  the  decease  of  each 
coparcener,  her  one-third  was  divided  equally  amongst  the  then  existing  heirs 
of  the  body  of  the  purchaser ;  and  the  result  will  be  that  the  parties,  instead  of 
each  being  entitled  to  one-third,  would  have  been  entitled  in  fractional  shares 
of  a  most  complicated  kind ;  unless  we  presume,  which  is  next  to  impossible, 
that  all  the  three  daughters  died  at  one  and  the  same  moment.  It  is  not  stated, 
in  the  report  of  the  case,  in  what  order  the  decease  of  the  daughters  took  place ; 
but  according  to  the  principle  suggested,  it  will  appear,  on  working  out  the  frac- 
tions, that  the  heir  of  the  one  who  died  first  would  have  been  entitled  to  the 
largest  share,  and  the  heir  of  the  one  who  died  last  would  have  been  entitled  to 
the  smallest.  Thus,  let  us  suppose  that  Martha  died  first,  then  Anne,  and  then 
Grace.  On  the  decease  of  Martha,  according  to  the  principle  suggested,  her  son, 
John  Whichelo,  would  have  taken  only  one-third  of  her  share,  or  one  ninth  of 
the  whole,  and  Anne  and  Grace,  the  surviving  sisters,  would  each  also  have 
r*mn  ta^en  oae-third  of  the  share  of  Martha,  in  addition  to  their  own  *one- 
-1  third  of  the  whole.  The  shares  would  then  have  stood  thus:  John 
Whichelo  -1.,  Anne  }  -f  ^,  Grace  }  +  -J.  Anne  now  dies.  Her  share,  accord- 
ing to  the  same  principle,  would  be  equally  divisible  amongst  her  own  issue, 
James  Gregory,  and  the  heirs  of  the  body  of  the  purchaser,  namely,  John 
Whichelo  and  Grace.  The  shares  would  then  stand  thus :  John  Whichelo 
•g-  +  i  (3  +  -§•) ;  namely,  his  own  share  and  one-third  of  Anne's  share,  ==  ?V  : 
James  Gregory,  }  (J  -f  |)  =  /7 :  Grace,  J  +  £  +  J  (i  +  A) ;  namely,  her 
own  share  and  one-third  of  Anne's  share  =  |f.  Lastly,  Grace  dies,  and  her 
share  according  to  the  same  principle,  would  be  equally  divisible  between  her 
own  issue,  Diones  Geere,  and  John  Whichelo  and  James  Gregory,  the  other  co- 
heirs of  the  body  of  the  purchaser.  The  shares  would  then  have  stood  thus : 
John  Whichelo, -27T  +  (i  X  \\);  namely,  his  own  share  and  one-third  of 
Grace's  share,  =  |£  of  the  entirety  of  the  land.  James  Gregory,  5*T  -f  (£  -f 
^| ) ;  namely,  his  own  share  and  one-third  of  Grace's  share  =  f  f  :  Diones 
Geere,  |  X  ||  =  |£.  On  the  principle,  therefore,  of  the  descent  of  the  share 
of  each  co-parcener  amongst  the  co-heirs  of  the  body  of  the  purchaser  for  the 
time  being,  the  heir  of  the  body  of  the  one  who  died  first  would  have  been  en- 
titled to  thirty-seven  eighty-first  parts  of  the  whole  premises;  the  heir  of  the 


APPENDIX.  481 

body  of  the  one  who  died  next  would  have  been  entitled  to  twenty-eight  eighty- 
first  parts ;  and  the  heir  of  the  body  of  the  one  who  died  last  would  have  been 
entitled  only  to  sixteen  eighty-first  parts.  By  the  judgment  of  the  court,  how- 
ever, the  lessors  of  the  plaintiff  were  entitled  each  to  one  equal  third  part ;  thus 
showing  that,  although  the  descent  of  an  estate  tail  under  the  old  law  was  always 
traced  from  the  purchaser  (otherwise  John  Whichelo  would  have  been  entitled 
to  the  whole),  yet  this  rule  was  qualified  by  another  of  equal  force,  namely,  that 
all  the  lineal  descendants  of  any  person  deceased  should  represent  their  ancestors; 
that  is,  should  stand  in  the  same  place,  and  take  the  same  share,  as  the  ancestor 
would  have  done  if  living. 

2.  Let  us  now  inquire  into  the  course  of  descent  of  an  estate  in  fee  simple, 
according  to  the  old  law,  in  case  the  ^purchaser  should  have  died,  p.,.,™-. 
leaving  two  daughters,  Susannah  and  Catherine,  neither  of  whom  L 
should  have  obtained  any  actual  seisin  of  the  lands,  and  that  one  of  them  (say 
Catherine)  should  afterwards  have  died,  leaving  issue  one  son.  In  this  case,  it 
is  admitted  on  all  sides  that  the  share  of  Catherine  would  have  descended  to 
the  heir  of  the  purchaser,  and  not  to  her  own  heir,  in  the  character  of  heir  to 
her;  for  the  maxim  was  seisina  facit  stipitem.  Had  either  of  the  daughters 
obtained  actual  seisin,  her  seisin  would  have  been  in  law  the  actual  seisin  of  the 
sister  also  ;  and  on  the  decease  of  either  of  them,  her  share  would  have  descended, 
not  to  the  heir  of  her  father,  but  to  her  own  heir,  the  seisin  acquired  having 
made  her  the  stock  of  descent.  In  such  a  case,  therefore,  the  title  of  the  son  of 
Catherine  to  the  whole  of  his  mother's  moiety  would  have  been  indisputable ; 
for,  while  he  was  living,  no  one  else  could  possibly  have  been  her  heir.  The 
supposition,  however,  on  which  we  are  now  to  proceed  is  that  neither  of  the 
daughters  ever  obtained  any  actual  seisin;  and  the  question  to  be  solved  is,  to 
whom,  on  the  death  of  Catherine,  did  her  share  descend ;  whether  equally  be- 
tween her  sister  and  her  son,  as  being  together  heir  to  the  purchaser,  or  whether 
solely  to  the  son,  as  being  heir  to  the  purchaser,  quoad  his  mother's  share.  In 
Mr.  Sweet's  valuable  edition  of  Messrs.  Jarman  and  Bythewood's  Convey- 
ancing,(A)  it  is  stated  to  be  "  apprehended  that  the  share  of  the  deceased  sister 
would  have  descended  in  the  same  manner  as  by  the  recent  statute  it  will  now 
descend  in  every  instance,"  which  manner  of  descent  is  explained  to  be  one-half 
of  the  share,  or  a  quarter  of  the  whole  only,  to  the  son,  and  the  remaining  half 
of  the  share  to  the  surviving  sister,  thus  giving  her  three-quarters  of  the  whole. 
This  doctrine,  however,  the  writer  submits,  is  erroneous ;  and  in  proof  of  such 
error,  it  might  be  sufficient  simply  to  call  to  mind  the  fact  that  the  law  of  Eng- 
land had  but  one  rule  for  the  discovery  of  the  heir.  The  heirs  of  a  purchaser 
were,  first  the  heirs  of  his  body,  and  *then  his  collateral  heirs ;  and 
an  estate  tail  was  merely  an  estate  restricted  in  its  descent  to  lineal    L         J 

(A)  Vol.  i.  p.  139.  This  point  has,  however,  since  heen  decided  in  accordance  with 
the  author's  opinion  in  Paterson  v.  Mills,  V.-C.  K.  Bruce,  15  Jur.  1;  s.  c.  19  L.  J. 
N.  S.  Ch.  310. 


483  APPENDIX. 

heirs.  If,  therefore,  the  heir  of  a  person  had  been  discovered  for  the  purpose 
of  the  descent  of  an  estate  tail,  it  is  obvious  that  the  same  individual  would  also 
be  beir  of  tbe  same  person  for  the  purpose  of  the  descent  of  an  estate  in  fee 
simple.  No  distinction  between  the  two  is  ever  mentioned  by  Lord  Coke,  or 
any  of  the  old  authorities.  Now,  we  have  seen  that  the  heir  of  the  purchaser 
under  the  circumstances  above  mentioned,  for  the  purpose  of  inheriting  an  estate 
tail,  was  the  son  of  the  deceased  daughter  solely,  quoad  the  share  which  such 
daughter  had  held ;  and  it  would  accordingly  appear  that  the  heir  of  the  pur- 
chaser, to  inherit  an  estate  in  fee  simple,  was  also  the  son  of  the  deceased  daugh- 
ter quoad  her  share.  That  this  was  in  fact  the  case  appears  incidentally  from 
a  passage  in  the  Year  Book.(t')  where  it  is  stated  that,  "  If  there  be  two  co- 
parceners of  a  reversion,  and  their  tenant  for  term  of  life  commits  waste,  and 
then  one  of  the  parceners  has  issue  and  dies,  and  the  tenant  for  term  of  life 
commits  another  waste,  and  the  aunt  and  niece  bring  a  writ  of  waste  jointly,  for 
they  cannot  sever,  and  the  writ  of  waste  is  general,  still  their  recovery  shall  be 
special ;  for  the  aunt  shall  recover  treble  damages  for  the  waste  done,  as  well  in 
the  life  of  her  parcener  as  afterwards,  and  the  niece  shall  only  recover  damages 
for  the  waste  done  after  the  death  of  her  mother,  and  the  place  wasted  they 
shall  recover  jointly.  And  the  same  law  is,  if  a  man  has  issue  two'  daughters 
and  dies  seised  of  certain  land,  and  a  stranger  abates,  and  afterwards  one  of  the 
daughters  has  issue  two  daughters  and  dies,  and  the  aunt  and  the  two  daughters 
bring  assize  of  mort  d'ancestor;  here,  if  the  aunt  recover  the  moiety  of  the  land 
and  damages  from  the  death  of  the  ancestor,  and  the  nieces  recover  each  one  of 
them  the  moiety  of  the  moiety  of  the  land,  and  damages  from  the  death  of  their 
mother,  still  the  writ  is  general."  Here  we  have  all  the  circumstances  re- 
quired ;  the  father  dies  seised,  leaving  two  daughters,  neither  of  whom  obtains 
r^AQA-,  any  actual  seisin  of  the  land ;  for  a  *stranger  abates — that  is,  gets  pos- 
session before  them.  One  of  the  daughters  then  dies,  without  having 
had  possession,  and  her  share  devolves  entirely  on  her  issue,  not  as  heirs  to  her, 
for  she  never  was  seised,  but  as  heirs  to  her  father  quoad  her  share.  The  sur- 
viving sister  is  entitled  only  to  her  original  moiety,  and  the  two  daughters  of 
her  deceased  sister  take  their  mother's  moiety  equally  between  them. 

There  is  another  incidental  reference  to  the  same  subject  in  Lord  Coke's 
Commentary  upon  Littleton  ;(li)  "  If  a  man  hath  issue  two  daughters,  and  is 
disseised,  and  the  daughters  have  issue  and  die,  the  issue  shall  join  in  a  prae- 
cipe, because  one  right  descends  from  the  ancestor,  and  it  maketh  no  difference 
whether  the  common  ancestor,  being  out  of  possession,  died  before  the  daughters 
or  after,  for,  that,  in  both  cases  they  must  make  themselves  heirs  to  the  grand- 
father which  was  last  seised,  and  when  the  issues  have  recovered,  they  are  co- 
parceners, and  one  praecipe  shall  lie  against  them."  "  It  maketh  no  difference," 
says  Lord  Coke,  "  whether  the  common  ancestor,  being  out  of  possession,  died 
before  the  daughters  or  after."     Lord  Coke  is  certainly  not  here  speaking  of 

(i)  35  Hen.  VI.  23.  (k)  Co.  Litt.  164  a. 


APPENDIX.  484 

the  shares  which  the  issue  would  take ;  but  had  any  difference  in  the  quantity 
of  their  shares  been  made  by  the  circumstance  of  the  daughters  surviving  their 
father,  it  seems  strange  that  so  accurate  a  writer  as  Lord  Coke  should  not 
"  herein"  have  "  noted  a  diversity."  The  descent  is  traced  to  the  issue  of  the 
daughters  not  from  the  daughters,  but  from  their  father,  the  common  grand- 
father of  the  issue.  On  the  decease  of  one  daughter,  therefore,  on  the  theory 
against  which  we  are  contending,  the  right  to  her  share  should  have  devolved, 
one-half  on  her  own  issue  and  the  other  half  on  her  surviving  sister;  and,  on  the 
decease  of  such  surviving  sister,  her  three-quarters  should,  by  the  same  rule, 
have  beeu  divided,  one-half  to  her  own  issue  and  the  other  half  to  the  issue  of 
her  deceased  sister;  whereas  it  is  admitted  that,  had  the  daughters  both  died  in 
their  father's  lifetime,  their  issue  would  have  inherited  in  equal  shares,  r^oc-. 
Lord  Coke,  however,  remarks  no  difference  whether  the  father  died 
before  or  after  his  daughters.  Surely,  then,  he  never  could  have  imagined  that 
so  great  an  equality  in  the  shares  could  have  been  produced  by  so  mere  an  acci- 
dent. It  should  be  remembered  that  the  rule  of  representation  for  which  we  are 
contending  is  the  rule  suggested  by  natural  justice,  and  might  well  have  been 
passed  over  without  express  notice ;  but  had  the  opposite  rule  prevailed,  the 
inequality  and  injustice  of  its  operation  could  scarcely  have  failed  to  elicit  some 
remark.  This  circumstance  may,  perhaps,  tend  to  explain  the  fact  that  the 
writer  has  been  unable,  after  a  lengthened  search,  to  find  any  authority  expressly 
directed  to  the  point;  and  yet,  when  we  consider  that  in  ancient  times  the  title 
by  descent  was  the  most  usual  one  (testamentary  alienation  not  having  been 
permitted),  we  cannot  doubt  but  that  the  point  in  question  must  very  frequently 
have  occurred  In  what  manner,  then,  can  we  account  for  the  silence  of  our 
ancient  writers  on  this  subject,  but  on  the  supposition,  which  is  confirmed  by 
every  incidental  notice,  that,  in  tracing  descent  from  a  purchaser,  the  issue  of  a 
deceased  daughter  took  the  entire  share  of  their  parent,  whether  such  daughter 
should  have  died  in  the  lifetime  of  the  purchaser  or  after  his  decease  ? 

Having  now  ascertained  the  course  of  descent  among  coparceners  under  the 
old  law,  wheuever  descent  was  traced  from  a  purchaser,  we  are  in  a  better  situ- 
ation to  place  a  construction  on  that  clause  of  the  act  to  amend  the  law  of  in- 
heritance which  enacts  ''  that  in  every  case  descent  shall  be  traced  from  the 
purchaser." (J)  What  was  the  nature  of  the  alteration  which  this  act  was  in- 
tended to  effect?  Was  it  intended  to  introduce  a  course  of  descent  amongst 
coparceners  hitherto  unknown  to  the  law,  and  tending  to  the  most  intricate  and 
absurd  subdivision  of  their  shares  ?  or  did  the  act  intend  merely  to  say  that  a 
descent  from  the  purchaser,  which  had  hitherto  occurred  only  in  the  case  of  an 
estate  tail,  and  in  the  case  where  the  heir  to  a  fee  *simple  died  without  r^op-i 
obtaining  actual  seisin,  should  now  apply  to  every  case?  In  other 
words,  has  the  act  abolished  the  rule  that,  in  tracing  the  descent  from  the  pur- 
chaser, the  issue  of  deceased  heirs  shall  stand,  quoad  their  entire  shares,  in  the 
(I)  Stat.  3  &  4  Will.  IV.  c.  106,  s.  2.  ' 


486  APPENDIX. 

place  of  their  parents  ?  We  have  seen  that  previously  to  the  act,  the  rule  that 
descent  should  be  traced  from  the  purchaser  whenever  it  applied  was  guided 
and  governed  by  another  rule,  that  the  issue  of  every  deceased  person  should, 
quoad  the  entire  share  of  such  person,  stand  in  his  or  her  place.  Why,  then, 
should  not  the  same  rule  of  representation  govern  descent,  now  that  the  rule 
tracing  descent  from  the  purchaser  has  become  applicable  to  every  case  ?  Had 
any  modification  been  intended  to  be  made  of  so  important  a  rule  for  tracing 
descent  from  a  purchaser,  as  the  rule  that  the  issue,  and  the  issue  alone,  repre- 
sent their  ancestor,  surely  the  act  would  not  have  been  silent  on  the  subject.  A 
rule  of  law  clearly  continues  in  force  until  it  is  repealed.  No  repeal  has  taken 
place  of  the  rule  that,  in  tracing  descent  from  a  purchaser,  the  issue  shall  al- 
ways stand  in  the  place  of  their  ancestor.  It  is  submitted,  therefore,  that  this 
rule  is  now  in  full  operation ;  and  that,  although  in  every  case  descent  is  now 
traced  from  the  purchaser,  yet  the  tracing  of  such  descent  is  still  governed  by 
the  rules  to  which  the  tracing  of  descent  from  purchasers  was  in  former  times 
invariably  subject.  If  this  be  so,  it  is  clear,  then,  that,  under  the  circumstances 
stated  at  the  commencement  of  this  paper,  the  share  of  Catherine  will  descend 
entirely  to  her  own  issue,  as  heir  to  the  purchaser  quoad  her  share,  and  will  not 
be  divided  between  such  issue  and  the  surviving  sister. 

It  is  said,  indeed,  that,  by  giving  to  the  issue  one-half  of  the  share  which  be- 
longed to  their  mother,  the  rule  is  satisfied  which  requires  that  the  issue  of  a 
person  deceased  shall,  in  all  cases,  represent  their  ancestor ;  for  it  is  argued  that 
the  issue  still  take  one-fourth  of  representation,  notwithstanding  that  the  other 
fourth  goes  to  the  surviving  sister,  who  constitutes,  together  with  such  issue, 
one  heir  to  their  common  ancestor.  This,  however,  is  a  fallacy ;  the  rule  is, 
"  that  the  lineal  descendants  in  infinitum  of  any  person  ^deceased  shall 
[  487]  represent  their  ancestor,  that  is,  shall  stand  in  the  same  place  as  the 
person  himself  would  have  done  had  he  been  living."  (m)  Now,  in  what  place 
would  the  deceased  daughter  have  stood  had  she  been  living?  Would  she 
have  been  heir  to  one-fourth  only,  or  would  she  not  rather  have  been  heir  to  the 
entire  moiety  ?  Clearly  to  the  entire  moiety ;  for  had  she  been  living,  no  de- 
scent of  her  moiety  would  have  taken  place ;  if,  then,  her  issue  are  to  stand  in 
the  place  which  she  would  have  occupied  if  living,  they  cannot  so  represent  her 
unless  they  take  the  whole  of  her  share. 

But  it  is  said,  again,  that  the  surviving  daughter  may  have  aliened  her 
share;  and  how  can  the  descent  of  her  deceased  sister's  share  be  said  to  be 
traced  from  the  purchaser,  if  the  survivor,  who  constitutes  a  part  of  the  pur- 
chaser's heir,  is  to  take  nothing  ?  The  descent  of  the  whole,  it  is  argued,  can- 
not be  considered  as  traced  over  again  on  the  decease  of  any  daughter,  because 
the  other  daughter's  moiety  may,  by  that  time,  have  got  into  the  hands  of  a 
perfect  stranger.     The  proper  reply  to  this  objection  seems  to  be,  that  the  laws 

(m)  2  Black.  Com.  216. 


APPENDIX.  487 

of  descent  were  prior  in   date  to  the  liberty  of  alienatiou.     In  ancient  times, 
when  the  rules  of  descent  were  settled,  the  objection  could  scarcely  have  oc- 
curred.    Estates   tail  were   kept  from   alienation   by  virtue  of  the  statute  De 
Donis  for  about  200  years  subsequent  to  its  passing.     Rights  of  entry  and  ac- 
tion were  also  inalienable  for  a  very  much  longer  period.     Reversions  expectant 
on  estates  of  freehold,  in  the  descent  of  which  the  same  rule  of  tracing  from  the 
purchaser  occurred,  could  alone  have  afforded  an  instance  of  alienation  by  the 
heir;  and  the  sale  of  reversions  appears  to  have  been  by  no  means  frequent  in 
early  times.     In  addition  to  other  reasons,  the  attornment  then  required  from 
the  particular  tenant  on  every  alienation  of  a  reversion  operated  as  a  check  on 
such  transactions.     It  may,  therefore,  be  safely  asserted  as  a  general  proposition, 
that  on  the  decease  of  any  coparcener,  the  descent  of  whose  share  was  to  be 
traced  from  the  purchaser,  the  shares  of  the  other  coparceners  *had  not  r*,<ocn 
been  aliened ;  and  to  have  given  them  any  part  of  their  deceased  sister's 
share,  to  the  prejudice  of  her  own  issue,  would  have  been  obviously  unfair,  and 
contrary  to   the   natural  meaning   of  the  rule    that   "  every  daughter    hath   a 
several  stock  or  root."(n)     If,  as  we  have  seen,  the  rule  remained  the  same  with 
regard  to  estates  tail,  notwithstanding  the  introduction  of  the  right  of  aliena- 
tion,^) surely  it  ought  still  to  continue  unimpaired,  now  that  it  has  become 
applicable  to  estates  in  fee,  which  enjoy  a  still  more  perfect  liberty.     Rules  of 
law  which  have  their  foundation  in  natural  justice  should  ever  be  upheld,  not- 
withstanding they  may  have  become  applicable  to  cases  not  specifically  contem- 
plated at  the  time  of  their  creation. 


♦APPENDIX  C.  [*489] 

Referred  to,  p.  119. 

It  has  been  remarked  that  the  author  differs  from  the  view  of  the  Court  of 
Exchequer  Chamber  in  the  case  of  Lord  Dunraven  v.  Llewellyn, (a)  without 
stating  his  reason. (b)  In  that  case  the  court  held  that  there  was  no  general 
common-law  right  of  tenants  of  a  manor  to  common  on  the  waste;  but  the 
author  remarked  that,  in  his  humble  opinion,  the  authorities  cited  by  the  court 
tend  to  the  opposite  conclusion. (c)     The  judgment  of  the  court  is  as  follows  : — 

(n)  Co.  Litt.  164  b. 

(o)  Doe  v.  Whichelo,  8  T.  R.  211  ;  ante,  p.  479. 

(a)  15  Q.  B.  791  (E.  C.  L.  R.  vol.  69). 

lb)  Six  Essays  on  Commons  Preservation,  Essay  3,  by  Mr.  F.  0.  Crump,  p.  188. 

(c)  Ante,  p.  119,  n.  (/).     The   reader  is  now  referred  to  the  cases  of  Smith  v.  Earl 
Brownlow,  L.  R.  9  Eq.  242,  and  Warwick  v.  Queen's  College,  L.  R.  10  Eq.  105,   123. 
Affirmed  L.  R.  6  Ch.  Ap.  716;  Betts  v.  Thompson,  L.  R.  6  Ch.,Ap.  732;  Hall  v.  Byron, 
L.  R.  4  Ch.  D.  667. 
28 


489  APPENDIX. 

"  The  question  in  this  case  is,  whether  my  brother  Piatt  was  right  in  rejecting 
"evidence  of  reputation,  offered  on  the  trial  before  him,  to  show  the  title  of  the 
"  lord  of  the  manor  of  Ogmore  to  certain  lands  within  the  ambit  of  the  manor. 

"  The  evidence  was  that  there  were  very  many  lands  and  tenements  held  of 
"  the  manor,  the  tenants  whereof,  in  respect  of  those  lands,  had  always  exercised 
"  rights  of  common  for  all  their  commonable  cattle  on  a  certain  waste  adjoining 
"to  which  was  the  locus  in  quo;  and  that  the  deceased  persons,  being  such 
"  tenants  and  exercising  rights  ante  litem  motam,  declared  that  the  locus  in  quo 
"  was  parcel  of  the  waste.  Another  description  of  evidence  was,  that  certain 
"  deceased  residents  in  the  manor  had  made  similar  declarations.  No  evidence 
"  was  given  of  the  exercise  of  the  rights  of  those  tenants  over  the  locus  in 
r*AQm  "  *2U0-  -My  brother  Piatt  rejected  the  evidence,  and,  we  think, 
*-         J    "rightly. 

"  In  the  course  of  the  argument  we  intimated  our  opinion  that  the  want  of 
"  evidence  of  acts  of  enjoyment  of  the  rights  did  not  affect  the  admissibility  of 
"  the  evidence,  but  only  its  value  when  admitted.  We  also  stated  that  no  objec- 
"  tion  could  be  made  to  the  evidence  on  the  ground  that  it  proceeded  from  per- 
"  sons  who  had  not  competent  knowledge  upon  the  subject,  or  from  persons  who 
"  were  themselves  interested  in  the  question.  The  main  inquiry  was  whether 
"this  was  a  subject  of  a  sufficiently  public  nature  to  justify  the  reception  of 
"  hearsay  evidence  relating  to  it. 

"  If  this  question  had  been  one  in  which  all  the  inhabitants  of  the  manor,  or 
"  all  the  tenants  of  it,  or  a  particular  district  of  it,  had  been  interested,  reputa- 
"  tion  from  any  deceased  inhabitant  or  tenant,  or  even  deceased  residents  in  the 
"  manor,  would  have  been  admissible,  such  residents  having  presumably  a  knowl- 
edge of  such  local  customs,  and  if  there  had  been  a  common-law  right  for 
"  every  tenant  of  the  manor  to  have  common  on  the  wastes  of  it.  reputation  from 
"  any  deceased  tenant  as  to  the  extent  of  those  wastes,  and  therefore  as  to  any 
"  particular  land  being  waste  of  the  manor,  would  have  been  admissible.  But 
"  although  there  are  some  books  which  state  that  common  appendant  is  of  com- 
"  mon  right,  and  that  common  appendant  is  the  common-law  right  of  every  free 
"tenant  in  the  lord's  wastes ;  for  example,  note  (I)  to  JVlellor  v  Spateman  ;(rf) 
"  Bennett  v.  Reeve  ;(e)  Com.  Dig.  Conmiou  (B),  it  is  not  to  be  understood  that 
"  every  tenant  of  a  manor  has  by  common  law  such  a  right,  but  only  that  certain 
"  tenants  have  such  a  right,  not  by  prescription,  but  as  a  right  by  common  law, 
"  incident  to  the  grant. 

"  This  is  explained  in  Lord  Coke's  Commentaries  on  the  Statute  of  Merton,(/) 

(d)  1  Wms.  Sauud.  346  d  (6th  edit.).  (e)  Willes  227,  231. 

(/)  Stat.  20  Hen.  III.  c.  4. 


APPENDIX.  491 

"  2  Inst.  85.  He  says,  <  By  this  *recital'  (of  that  statute)  'a  point  of  pMqn 
"'the  ancient  common  law  appeareth,  that  when  a  lord  of  a  manor  ^ 

"  '  (whereon  was  great  waste  grounds)  did  enfeoff  others  of  some  parcels  of 
"  '  arable  land,  the  feoffees  ad  manutenend'  servitium  socee,  should  have  common 
"  '  in  the  said  wastes  of  the  lord  for  two  causes.  1.  As  incident  to  the  feoff- 
"  '  ment,  for  the  feoffee  could  not  plough  and  manure  his  ground  without  beasts. 
"  '  and  they  could  not  be  sustained  without  pasture,  and  by  consequence  the 
"  '  tenant  should  have  common  in  the  wastes  of  the  lord  for  his  beasts  which  do 
"  '  plough  and  manure  his  tenancy  as  appendant  to  his  tenancy,  aud  this  was 
"  '  the  beginning  of  common  appendant.  The  second  reason  was,  for  mainte- 
"  '  nance  and  advancement  of  agriculture  and  tillage,  which  was  much  favored 
"  '  in  law.'  The  same  law  is  laid  down  by  Coke  and  Foster,  1  Rol.  Abr.  396,  1. 
"  45,  tit.  Common  (C),  pi.  4. 

"  This  right,  therefore,  is  not  a  common  right  of  all  tenants,  but  belongs  only 
"  to  each  grantee,  before  the  statute  of  Quia  Emptores,  of  arable  land  by  virtue 
"  of  his  individual  grant,  and  as  an  incident  thereto;  and  it  is  as  much  a  pecu- 
"  liar  right  of  the  grantee  as  one  derived  by  express  grant  or  by  prescription, 
"  though  it  differs  in  its  extent,  being  limited  to  such  cattle  as  are  kept  for 
"  ploughing  and  manuring  the  arable  land  granted,  and  as  are  of  a  description 
"  fit  for  that  purpose;  whereas  the  right  by  grant  or  prescription  has  no  such 
"  limits,  and  depends  on  the  will  of  the  grantor. 

"  We  are  therefore  of  opinion  that  this  case  is  precisely  in  the  same  situation 
"  as  if  evidence  had  been  offered  that  there  were  many  persons,  tenants  of  the 
"  manor,  who  had  separate  prescriptive  rights  over  the  lord's  wastes;  and  repu- 
"  tation  is  not  admissible  in  the  case  of  such  separate  rights,  each  being  private, 
"  and  depending  on  each  separate  prescription,  unless  the  proposition  can  be 
"  supported  that,  because  there  are  many  such  rights,  the  rights  have  a  public 
"  character,  and  the  evidence,  therefore,  becomes  admissible. 

*"  We  think  this  position  cannot  be  maintained.  It  is  impossible  to  r*AQ91 
"  say  in  such  a  case  where  the  dividing  point  is.  What  is  the  number  ^  ^ 
"  of  rights  which  is  to  cause  their  nature  to  be  changed,  and  to  give  them  a 
"  public  character? 

"  But  it  is  said  that  there  are  cases  which  have  decided  that  where  there  are 
"  numerous  private  prescriptive  rights  reputation  is  admissible :  and  the  case  of 
"Weeks  v.  Sparke(^)  is  relied  upon  as  establishing  that  proposition.  The 
"  reasons  given  by  the  different  judges  in  that  case  would  certainly  not  be  satis- 
"  factory  at  this  day ;  some  putting  it  on  the  ground  of  the  custom  of  the  cir- 
"  cuits,  some  upon  the  ground  that  where  there  was  proof  of  the  enjoyment  of  the 
"right,  reputation  was  admissible.  Both  these  reasons  are  now  held  to  be 
"  insufficient.     It  may  be  that  the  evidence  admitted  was  that  of  reputation  from 

(ff)  1  M.  &  S.  679. 


492  APPENDIX. 

"  deceased  commoners,  which  would  be  admissible  on  the  same  principle  that 
"  the  statement  of  a  deceased  person  in  possession  of  land  abridging  or  limiting 
"  his  interest  is  admissible  ;  but  that  reason  does  not  apply  to  the  present  case, 
"  because  the  statements  are  used  to  extend,  not  to  limit,  the  rights.  It  was 
"also  said  that  the  case  of  Weeks  v.  Sparke(^r)  had  since  been  sanctioned  by 
"  the  Court  of  Queen's  Bench  in  that  of  Pritchard  v.  Powell, (A)  where  it  was 
"  held  that  reputation  was  admissible  to  prove  common  between  two  wastes  pur 
"cause  de  vicinage.  But  the  claim  in  that  case  was  treated  as  a  matter  of 
"  immemorial  custom  (see  p.  G03) ;  and  reputation  in  support  of  a  custom  is 
"  admissible. 

"  We  are  of  opinion,  therefore,  that  the  evidence  of  reputation  offered  in  this 
"  case  was,  according  to  the  well-established  rule  in  the  modern  cases,  inadmis- 
i(  sible,  as  it  is  in  reality  in  support  of  a  mere  private  prescription ;  and  the 
"  number  of  these  private  rights  does  not  make  them  to  be  of  a  public  nature. 

"  Therefore  the  judgment  must  be  affirmed." 

Judgment  affirmed. 

*The  substance  of  the  argument  of  the  court  appears  to  be  this : 
«-  J  Common  appendant  is  not  a  right  of  all  tenants,  but  only  of  certain  of 
the  tenants,  namely,  the  tenants  of  arable  land ;  and  being  the  individual  right 
of  some,  and  not  the  general  right  of  all,  it  is  not  of  so  public  a  nature  as  to 
warrant  the  admission  of  evidence  of  reputation  concerning  it. 

The  authorities  cited  are  : — 

1.  Note  (I)  to  Mellor  v.  Spateman.(^)  This  is  as  follows: — "Common  ap- 
"  pendant,  being  the  common-law  right  of  every  free  tenant  of  a  manor  on 
"  the  lord's  wastes  (Com.  Dig.  tit.  Common  (B)),  is  confined  to  such  and  so 
"  many  cattle  as  the  tenant  has  occasion  for,  to  plough  and  manure  his  land,  in 
"  proportion  to  the  quantity  thereof." 

2.  The  case  of  Bennett  v.  Reeve. (&)  It  is  there  said — "  The  reason  for  com- 
"  mon  appendant  appears  to  be  this,  that  as  the  tenant  would  necessarily  have 
"  occasion  for  cattle,  not  only  to  plough  but  likewise  to  manure  his  own  land, 
"  he  must  have  some  place  to  keep  such  cattle  in  whilst  the  corn  is  growing  on 
"  his  own  arable  land,  and  therefore  of  common  right  (if  the  lord  had  any 
"  waste)  he  might  put  his  cattle  there  when  they  could  not  go  on  his  own  arable 
"  land.  This  is  a  simple  and  intelligible  reason  for  this  custom,  and  is  said  to 
"  be  the  reason  in  Co.  Litt.  122  a." 

{g)  1  M.  &  S.  679.  (A)  10  Q.  B.  589  (E.  C.  L.  R.  vol.  59). 

(?)  1  Wms.  Saund.  346  d  (6th  edit.).  (k)  Willes  227,  231. 


APPENDIX.  493 

3.  Comyn's  Digest,  tit.  Common  (B).  It  is  there  said — "Common  appendant 
"  is  of  common  right.  1  Rol.  396,  1.  44.  For  if  a  man  had  enfeoffed  others, 
"  before  the  Statute  of  Quia  Emptores  Terrarum,  of  lands  parcel  of  his  manor, 
"  the  feoffees  should  have  common  for  their  commonable  cattle  within  the  wastes, 
"  &c,  as  the  lord,  as  incident  to  their  feoffment.  2  Inst.  85,  6,  per  2  J. ;  1  Rol. 
"396,  1.45;  4  Co.  37." 

The  last  authority  is  Lord  Coke's  Commentary  on  the  Statute  of  Merton, 
which  is  set  out  at  length  in  the  judgment  of  the  court. 

*It  is  admitted  that  common  appendant  cannot  belong  to  any  but 
arable  laud.  It  cannot  belong  to  a  house,  as  such,  exclusive  of  any  L  J 
yard  or  place  for  cattle,  nor  can  it  belong  to  ancient  meadow  or  pasture,  nor  to 
an  ancient  wood, (7)  nor  to  the  bed  of  a  river,  nor,  it  is  presumed,  to  the  soil  of  a 
highway,  nor  to  mines  and  minerals,  of  all  which  there  may  be  tenants.  All 
these  are  admitted  exceptions.  But  the  admission  of  an  exception  is  not  neces- 
sarily the  destruction  of  a  rule.  And  it  is  submitted  that,  as  a  rule,  in  the  times 
of  the  Normans,  all  tenants  were  tenants  of  arable  land,  that  the  meadow  and 
pasture  lands  were  subservient  to  the  arable,  that  by  land  was  primarily  meant 
arable  land,  that  the  exceptions  depend  simply  on  the  nature  of  their  subject- 
matter,  and  that  the  rights  of  the  owners  of  arable  land  in  a  manor  were  the 
rights  of  the  whole  agricultural  public  in  that  manor,  and,  as  such,  of  a  suffi- 
ciently public  nature  to  make  reputation  properly  admissible  in  questions  con- 
cerning them. 

A  tenant  in  former  times  required  a  house  to  live  in,  arable  land  for  his 
maintenance,  pasture  for  his  cattle,  acorns  for  his  pigs,  and  wood  for  fuel  and 
repairs.  Accordingly,  in  the  argument  iu  Hill  v.  Grange, (m)  it  is  said,  "  Every- 
"  thing  is  placed  in  writs  by  the  rule  of  the  register  according  to  its  dignity ;  for 
"  which  reason  a  messuage  is  placed  before  land,  and  land  before  meadow,  and 
"  meadow  before  pasture,  et  sic  de  similibus.  And  everything  is  ranked  and 
"  distinguished  in  dignity  according  to  its  necessary  use  in  life ;  for  to  have  a 
"  house  for  a  man  to  dwell  in,  and  to  defend  his  body  against  the  coldness  and 
"  inclemency  of  the  air,  is  more  necessary  than  to  have  land  to  plough  for 
"  bread ;  and  to  have  land  for  bread  is  again  more  necessary  than  to  have 
"  meadow  for  hay  for  cattle ;  and  to  have  meadow  for  hay,  which  will  serve  the 
"  whole  year,  is  more  necessary  than  pasture,  et  sic  de  similibus."  Here  it  is  said 
that  land  is  for  bread.  By  "land"  is  meant  "arable  land,"  according  to  the 
well-understood  meaning  of  the  *word  in  ancient  times.  And  the  land 
was  for  bread.  Every  tenant  took  land  because  he  desired  to  live  upon  L  J 
the  corn  it  grew.  Meadow,  pasture  or  wood,  without  arable  land,  was  of  no 
use,  and  therefore  not  taken  alone.     The  meadow  and  pasture  were  required  to 

(I)  See  Earl  of  Sefton  v.  Court,  5  B.  &  C.  917,  922  (E.  C.  L.  R.  vol.  11). 
(m)  Plowd.  164,  169. 


495  APPENDIX. 

support  the  horses,  cattle,  and  sheep,  by  means  of  which  the  land  was  tilled  and 
manured,  and  the  woods  in  those  days  were  chiefly  valuable  as  affording  susten- 
ance for  the  pigs.  Porci  inannulati,  or  unrung  pigs,  are  the  objects  of  frequent 
animadversion  in  sundry  old  court  rolls. (h)  In  Domesday  Book  the  meadow 
land  is  frequently  measured  by  ploughs.  Thus  in  Kensington  (Chenesit)  there 
was  land' to  ten  ploughs,  meadow  for  two  ploughs,  pasture  for  the  cattle  of  the 
village,  and  pannage  for  two  hundred  hogs.(o)  By  "  meadow  for  two  ploughs" 
was  meant  so  much  meadow  as  would  support  the  oxen  necessary  for  two 
ploughs. (p)  So  in  the  ancient  Saxon  grants, (q)  and  also  in  the  Norman  grants 
made  prior  to  the  statute  of  Quia  Emptores,(r)  meadows  and  pastures  are 
mentioned  with  other  appurtenances  as  belonging  to  the  land.(s)  So  in  the 
Abbreviatio  Placitorum  it  is  recorded  that  in  Michaelmas  term,  2  John,  Walter 
de  Witifeld  recovers  his  seisin  of  twenty  acres  of  pasture  and  forty  acres  of  wood 
belonging  to  his  free  tenemental) 

The  land  was  measured  amongst  the  Saxons  by  hides  and  yard  lands  (virgatee), 
of  which  four  usually  went  to  a  hide.  Thus  the  Saxon  Chronicle,  in  speaking 
of  Domesday,  says — "  So  very  narrowly,  indeed,  did  he  commission  them  to  trace 
it  out,  that  there  was  not  one  single  hide  nor  yard  land,  nay,  moreover  (it  is 
shameful  to  tell,  though  he  thought  it  no  shame  to  do  it),  not  even  an  ox,  nor  a 
I~*4-Qfi1  cow'  nor  a  swme  was  there  left,  that  was  not  set  down  in  his  *writ."(«) 
A  hide  land  was  supposed  to  be  as  much  arable  land  as  would  maintain 
a  family.  It  was  accordingly  called  familia  by  the  Venerable  Bede,(x)  though 
in  some  rare  cases  the  term  "  hide"  appears  to  have  been  applied  to  pasture 
and  wood.(^)  But  amongst  the  Normans  lands  were  measured  by  plough- 
lands  (carucatse)  and  oxgangs  (bovatse),  terms  exclusively  applicable  to  arable 
land,  a  ploughland  being  as  much  as  a  plough  could  till,  and  an  oxgang  as  much 
as  an   ox-team   could   till. (z)      A  writ  for  an  oxgang  of  marsh  was  held  ill, 

(n)  See  those  of  the  manor  of  Wimbledon. 

(o)  Bawdwen's  Translation  of  Domesday,  Middlesex,  p.  25. 

(p)  Sir  H.  Ellis's  Introduction  to  Domesday,  vol.  1,  pp.  103,  149,  n.  (4). 

(q)  Sharon  Turner's  Anglo-Saxons,  vol.  2,  pp.  555,  556. 

(r)  Stat.  18  Edw.  I.  c.  1. 

(s)  Mad.  Form.  Angl.  No.  288,  p.  178;  No.  296,  p.  181  ;  No.  298,  p.  182;  No.  338,  p. 
257  ;  No.  360,  p.  274  ;  No.  362,  p.  275  ;  No.  364,  p.  276  ;  No.  580,  p.  328. 

(t)  Abbreviatio  Placitorum,  p.  27.     See  also  Hil.  4  John,  p.  37. 

(w)  Sax.  Chro.  Anno  1085,  p.  289,  Ingram's  edit.  The  learned  translator  puts  "yard 
of  land,"  which  he  explains  to  be  the  fourth  part  of  an  acre ;  but  the  expression  is 
jypbe  lanber,  yard  land,  which  comprised  several  acres,  varying  in  different  places. 
Gibson  rightly  translates  the  passage  thus:  "  ut  ne  unica  esset  hyda  aut  virgata  terrse." 
Gibson's  Sax.  Chron.  p.  186. 

(x)  Co.  Litt.  69  a;  Sir  H.  Ellis's  Introduction  to  Domesday,  vol.  1,  145. 

(y)  Sir  H.  Ellis's  Introduction  to  Domesday,  vol.  1,  p.  148. 

(z)  Ibid.  vol.  1,  p.  156.  Lord  Coke,  however,  says  that  an  oxgang  was  as  much  as 
an  ox  could  till. 


APPENDIX.  496 

"  because  an  oxgang  is  always  of  a  thins:  which  lies  in  tillage."(a)  Though,  as 
Lord  Coke  observes,(&)  "  a  ploughland  may  contain  a  messuage,  wood,  meadow, 
and  pasture,  because  that  by  them  the  ploughman  and  the  cattle  belonging  to  the 
plough  are  maintained."  Grain  and  tillage  were  syuonymous  term,  gaigner  signi- 
fying to  till  and  qainure  tillage.  So  beasts  of  the  plough  and  *cattle. 
which  tilled  and  manured  the  land,  were  exempt  from  distress  if  any  L  J 
other  could  be  found. (c)  And  the  ancient  law  with  respect  to  tithe  corresponded 
with  this  state  of  things.  As  a  rule,  every  kind  of  produce  was  titheable.  But 
no  tithe  was  payable  for  grass  used  for  the  agistment  or  feeding  of  any  cattle  or 
sheep  employed  in  the  tillage  or  manurance  of  arable  land  within  the  parish ; 
because  the  parson  thereby  got  better  tithes  from  the  arable  land.(c?)  The 
pasture  land  was  thus  treated  by  law  as  subservient  to  the  arable,  and  excused 
from  tithe  on  the  ground  that  it  tended  to  make  the  arable  land  more  profit- 
able. 

The  statutes  of  Merton(e)  and  Westminster  the  second  (/)  treat  tenants  en- 
titled to  common  appendant  as  a  well-known  class,  the  former  speaking  of  them  as 
feoffees,  the  latter  as  tenants  or  the  lord's  men.  Both  statutes  relate  only  to 
common  of  pasture,  that  being  a  right,  and  the  only  right,  always  given  by  the 
law ;  and  the  latter  statute  expressly  excepts  common  of  pasture  claimed  by  anv 
one  in  any  other  manner  than  of  common  right  he  ought  to  have,  "  alio  modo 
<j nam  de  jure  communi  habere  deberet."  By  these  statutes  the  lord  was  enabled 
to  improve  his  wastes,  provided  he  left  sufficient  common  for  the  tenants. 

The  tenants  exercising  these  rights  of  common  were  often  called  generally  the 
lord's  freemen.  Thus,  in  the  reign  of  King  John,  Amauricus  Comes  Hebrai- 
carum  grants  to  a  tenant  as  to  his  freeman,  for  his  service  and  homage,  a  yard 
land,  with  a  messuage  to  the  same  laud  belonging,  and  with  all  its  appurtenances, 
to  hold  of  him  and  his  heirs  to  the  tenant  and  his  heirs  at  a  certain  rent ;  "  and 

(a)  Fitz.  Abr.  tit.  Briefs,  241.  The  learned  editor  of  Co.  Litt.  erroneously  supposes 
that  the  writ  was  held  ill  on  account  of  the  uncertainty  of  the  term  oxgang:  Co.  Litt. 
69  a,  n.  (z).  And  he  further  adds,  "  See  infra,  a  like  case  as  to  the  uncertainty  of 
virgata."  The  case  referred  to  appears  to  be  that  mentioned  by  Lord  Coke  in  Co.  Litt. 
69  a — "A  fine  shall  not  be  received  de  una  virgata  lerrse,  for  the  uncertainty;  vide  39 
Hen.  VI.  8."  But  on  reference  to  the  Year  Book  it  will  be  found  that  all  that  was  de- 
cided was,  that  if  a  grant  was  anciently  made  of  two  virgates  of  land,  on  which  two 
messuageg  have  since  been  built,  and  part  of  which  has  since  been  converted  into 
meadow,  pasture  and  wood,  the  deed  of  grant  must  be  pleaded  in  its  terms,  and  the 
land  demanded  by  the  names  appropriate  to  its  present  state  of  messuage,  land,  meadow, 
pasture  and  wood,  the  change  being  alleged.  And  in  Sheppard's  Touchstone,  p.  12, 
bovata  and  virgata  are  both  mentioned  amongst  the  proper  terms  to  pass  land  by  fine. 

(b)  Co.  Litt.  69  a. 

(c)  Com.  Dig.  tit.  Distress  (C)  ;  2  Inst.  132. 

(d)  1  Eagle  on  Tithes  289,  290. 

(e)  Stat.  20  Hen.  III.  c.  4. 

(/)  Stat.  13  Edw.  I.  c.  46.     And  see  stat.  3  &  4  Edw.  VI.  c.  3,  s.  2. 


497  APPENDIX. 

I  will,"  the  deed  proceeds,  "  that  he  shall  have  common  in  my  town  of  M.  like 
my  other  freemen  (sicut  alii  liber  i  mei  homines)  in  woods  and  waters  and  pastures 
and  ways  and  paths."( g)  So,  in  the  second  year  of  the  reign  of  King  John,  the 
r*4QSl  men  °f  ^>run^^  m  Sussex,  complain  that  the  abbot  of  Battle  *and  the 
-*  abbot  of  Robertsbridge  had  levied  a  fine  in  the  King's  Court  of  a  cer- 
tain marsh  which  belonged  to  their  free  tenement  in  Prunhull,  of  which  their 
predecessors  were  seised  as  of  right  in  the  time  of  Henry  the  king's  father.(A) 
So  the  men  of  Ormadan,  to  the  number  of  forty,  release  to  the  abbess  and  con- 
vent of  Dora  their  rights  of  common  in  certain  lands. (i)  So,  in  the  reign  of 
King  Henry  III.,  Richard  de  Stoches  grants  to  the  monks  of  Bruerne  certain 
lands  in  frankalmoigne,  and  also  grants  them  common  of  pasture  with  the  othpr 
men  of  the  same  fee.(&)  The  men  are  mentioned  generally,  not  as  certain  par- 
ticular tenants,  but  the  whole  of  the  tenants  of  that  fee  or  feud. 

The  fact  that  when  "land"  is  spoken  of  in  legal  instruments  arable  land  is 
always  understood,  unless  the  contrary  appears,  shows  the  importance  attached  to 
arable  land,  and  tends  to  prove  that  the  tenants  of  the  arable  lands  in  a  manor 
were  not  merely  certain  individual  tenants,  but  were  in  ancient  times  all  the 
tenants  as  a  class.  When  every  tenant  held  and  lived  upon  arable  land,  nothing 
could  be  more  natural  than  that  by  the  word  "  land"  arable  land  should  be  pri- 
marily understood. 

The  exceptions  to  the  rule,  that  common  appendant  is  the  common-law  right 
of  every  free  tenant  of  a  manor,  depend  simply  on  this,  that  the  special  nature 
of  certain  subjects  of  tenure  renders  common  appendant  inappropriate  to  their 
enjoyment.  Common  appendant  was  the  right  which  every  free  tenant  of  arable 
land  had,  by  the  common  law,  to  depasture  upon  the  lord's  wastes  all  cattle  sub- 
servient to  the  tillage  and  manurance  of  such  land,  namely,  horses,  kiue,  and 
sheep,  which  are  thence  called  commonable  beasts ;  and  the  number  of  beasts  to 
be  put  upon  the  common  was  as  many  as  were  levant  and  couchant  upon  the 
land, — that  is,  as  many  as  the  land  was  capable  of  maintaining  on  it  by  its 
^produce  through  the  winter.  Common  appendant  could  not  be 
L  J  claimed  in  respect  of  a  house  without  any  curtilage  or  yard ;  for  it 
was  truly  said,  "  beasts  cannot  be  rising  and  lying  down  on  a  house,  unless  it  be 
on  the  top  of  the  house."(7)  But  a  curtilage  was  supposed  to  belong  to  a  house 
or  cottage  unless  the  contrary  appeared. (in)  So  common  appendant  could  not 
be  claimed  in  respect  of  ancient  meadow  or  pasture ;  for  the  meadow  and  pas- 
ter) Mad.  Form.  Angl.  No.  303,  p.  184. 

(A)  Abbreviatio  Placitorum,  p.  32. 

(i)  Mad.  Form.  Angl.  No.  153,  p.  83. 

\k)  Mad.  Form.  Angl.  No.  341,  pp.  258,  259.     See  also  No.  361,  pp.  274,  275. 

(I)  2  Brownlow  101  ;  Scholes  v.  Hargreaves,  5  T.  Rep.  46  ;  Benson  v.  Chester,  8  T. 
Rep.  396. 

(m)  Comp.  Dig.  tit.  Common  (B). 


APPENDIX.  499 

ture  itself  helped  to  depasture  the  beasts  which  tilled  and  manured  the  arable 
land  to  which  it  belonged ;  and  meadow  and  pasture  did  not  require  beasts  to 
till  it.  The  tenant  who  had  pasture  land  of  his  own  would  not  require  to  put  so 
many  cattle  on  the  lord's  wastes ;  and  by  custom  common  appendant  might  be 
limited  to  a  certain  number  of  beasts.(»j  But  the  fact  that  tbe  tenant  might 
feed  his  beasts  elsewhere  did  not  destroy  his  claim  to  common  appendant  ;(o) 
and  even  if  arable  land  was  converted  into  meadow  or  pasture,  the  right  to 
common  appendant  still  remained,  for  the  land  might  be  ploughed  up  again. (p) 
In  some  cases  the  meadow  laud  was  periodically  allotted  to  the  owners  of  the 
arable  land  in  the  manor,  giving  rise  to  an  exceptional  estate  of  inheritance 
peculiar  to  meadow  land.  The  freehold  was  not  in  the  lord,  but  in  the 
tenants  ;(</)  and  a  feoffment  by  the  tenant  of  the  allotment  for  the  time  being 
allotted  to  him  was  sufficient  to  pass  his  interest  in  the  whole  of  the  mead.(v) 
Meadow  or  pasture  land  is  then,  from  its  nature,  an  exception  to  the  ordinary 
rule  which  gives  common  appendant  of  common  right  to  every  freehold.  But 
such  exceptions  as  these  do  but  illustrate  and  confirm  the  rule,  *that  r*5QQ-i 
of  common  right  every  freeholder  is  entitled  to  common  appendant  in 
the  lord's  wastes. 

The  authorities  above  cited  from  Williams's  Saunders,  Willes's  Reports,  and 
Comyn's  Digest,(s)  are  strictly  in  accordance  with  the  principles  above  stated. 
And  Lord  Coke's  Commentary  on  the  Statute  of  Merton,  which  is  cited  at 
length  by  the  court  in'the  judgment  in  Lord  Dunraven  v.  Llewellyn, (t)  so  far 
from  shaking  these  authorities,  evidently  confirms  them.  The  court,  however, 
says  that  common  appendant  is  not  a  common  right  of  all  tenants,  but  belongs 
only  to  each  grantee,  before  the  statute  of  Quia  Emptores,  of  arable  land  by 
virtue  of  his  individual  grant,  and  as  an  incident  thereto,  and  is  as  much  a 
peculiar  right  of  the  grantee  as  one  derived  by  express  grant  or  by  prescription. 
But  the  principle  that  common  appendant  is  not  a  peculiar  right,  but  the 
common  right  of  all  tenants,  is  not  only  asserted  by  the  authorities  above 
mentioned,  and  consistent  with  the  language  of  the  legislature  and  of  ancient 
documents,  but  it  has  produced  doctrines  of  law  which  are  undeniable,  and 
which  turn  solely  on  the  distinction  that  this  kind  of  common  is  of  common 
right,  whilst  other  kinds  are  not.  These  doctrines  are  two.  First,  because 
common  appendant  is  of  common  right,  therefore  a  man  need  not  prescribe  for 
it.(ji)      Lord  Coke,  who   lays  down  this  doctrine,  had   previously  said   that 

(n)  1  Rol.  Abr.  tit.  Common  (G),  4;  Com.  Dig.  tit.  Common  (B). 

(o)  Year  Book,  17  Edw.  III.,  34  b ;   1  Rol.  Abr.  tit.  Common  (G),  8. 

(p)  Tyrringham's  Case,  4  Rep.  36  b,  37  b  ;  Carr  v.  Lambert,  Law  Rep.  1  Exch.  168. 

(q)  Welden  v.  Bridgewater,  Cro.  Eliz.  421  ;  Moor  302  ;  Co.  Litt.  4  a;  Rol.  Abr.  tit. 
Estate  (C).  See  also  Arch;eologia,  vol.  23,  p.  275  ;  vol.  35,  p.  470  ;  Case  and  Opinion 
of  Sir  Orlando  Bridgman,  12  Jur.  N.  S.,  pt.  2,  p.  103;  and  see  Pate  v  Brownlow,  1 
Keble  876. 

(r)  Co.  Litt.  48  b.  (s)  Ante,  p.  493.  (t)  Ante,  p.  490. 

(«)  Co.  Litt.  122  a;  Year  Book,  21  Hen.  VI.,  10  a;  Fitz.  Nat.  Brev.  179,  n.  (b). 


500  .      APPENDIX. 

appendants  are  ever  by  prescription. (as)  Mr.  HargraVe,  in  his  note,  reconciles 
the  two  doctrines  thus:  that  "as  appendancy  cannot  be  without  prescription, 

the   Por r  always   implies  the   latter;   and   therefore,  if  one  pleads   common 

appendant,  it  is  unnecessary  to  add  the  usual  form  of  prescribing."(,y)  In 
other  words,  common  appendant  is  not  a  peculiar  right  belonging  to  each 
m  mtee,  but  o  common  right  belonging  to  all,  and  so  well  known  to  the  law  as 
such ,  that  it  is  sufficient  in    pleading   merely  to  mention  its  name,  without 

,,r    ,,  entering   *into  a    'e   minute    description.     Had  it  been    a  peculiar 

1   rfghl   belonging  to  eaoh  grantee,  it  would  have  been  necessary  to  set  it 
mil,  the  tenant   olaiming  that  he,  and  nil  those  whose  estate  he  had,  from  time 

ii imorial  used  to  place  so  many  beasts  of  Buch  a  kind  upon  such  a  common. 

In  i his  respeot  common  appendant  resembles  tin"  customs  of  gavelkind  and 
borough-English,  which  arc  known  to  the  law  and  need  not  be  particularly 
described,  whereas  any  other  customary  mode  of  descent  requires  to  be  par- 
tioularlj  Btated.l  I  Seoondly,  "If  a  man  purchase  part  of  the  land  wherein 
OOmmon  appendant  is  to  be  had,  the  common  shall  he  apportioned,  becaust  it  is 
of  common  right ;  but  not  so  of  a  common  appurtenant,  or  of  any  other  common 
..I'  what  nature  soever."(o)  Here  common  appendant  is  distinguished  from  all 
Other  k i 1 1 . N  of  common,  on  the  simple  ground  of  its  being  of  common  right  or  a 
right  given  by  the  law.  Tyrringham's  Case(6)  turned  on  this  distinction. 
The  tenant  there  lost  his  common  by  claiming  it  as  annexed  to  meadow  and 
p&gturej  whereby  Was  understood  ancient  meadow  and  pasture,  to  which,  as  we 
have  seen,(c)  common  cannot  be  appendant.  Common  may.  however,  by  a 
grant  Or  prescription,  be  appurtenant  to  meadow  and  pasture;  and  such  in  this 
Oase  it  was  held  to  be.  The  owner  o(  part  o\'  the  land  over  which  the  common 
WAS  Olaimed,  purchased  the  premises  in  respect  of  which  it  was  claimed,  and 
then  demised  them  to  the  plaintiff,  who  put  in  two  COWS  into  the  residue  of  the 
land  over  which  the  right  of  common  had  existed.  The  defendant,  who  was 
the  farmer  of  the  owner  of  this  land,  with  a  little  dog  drove  out  the  COWSJ  and 
it  wis  held  that  he  was  justified  in  so  doing.  By  the  union  of  part  of  the  land 
wherein  i he  common  was  to  be  had  with  the  premises  in  respect  of  which  it  was 
to  be  had,  the  entire  right  o\'  common  was  destroyed,  because  it  was  merely 
common  appurtenant.  "  Forasmuch  as  the  court  resolved  that  the  common  was 
appurtenant  and  not  appendant,  and  SO  against  common  right,  it  was  adjudged 
that  bj  the  said  purchase  all  the  common  was  extanct,"(a*)  Common  appurte- 
.,.-  ,.,.  mint  is  *against  common  right  because  it  depends  upon  a  special 
grant,  either  expressed  or  implied  from  long  usage  ;  and  the  law 
trdingly  allows  it  to  fail  altogether  whenever  it  cannot  be  exercised  iu  its 
integrity.      But  common  appendant,  being  of  common  right,  a  right   common  to 

itt.  m  t>. 

To.  1. itt.  m  ft,  u.  (2)  :  Jetikia  v.  Vivian.  Popham  201. 
Or.  tit.  Customs  (H).  •     Co    I 

Rep.  36  b. 

■  '.lop.  S9  a. 


APPENDIX.  502 

every  freeholder,  is  favored  by  the  law,  and  allowed  to  be  apportioned  on  the 
union  of  the  tenements  in  respect  of  which  it  is  claimed  with  part  of  the  lands 
over  which  the  right  is  exercised.  Had  the  common  been  <i/>/>< ndant  in 
Tyrriugham's  Case,  it  is  clear  that  the  court  would  have  held  the  plaintiff  jus- 
tified in  putting  in  an  apportioned  number  of  cattle  on  the  residue  of  the  lands 
over  which  the  right  of  common  originally  existed. 

These  considerations  would  probably  be  of  themselves  sufficient  to  show  that 
the  proposition  laid  down  in  books  of  authority,  that  common  appendant  is  the 
common-law  right  of  every  tenant  of  freehold  lands,  is  as  accurate  as  any  gene- 
ral proposition  can  be,  and  is  not  to  be  explained  away  into  a  number  of  distinct 
and  peculiar  grants,  made  only  to  certain  tenants  individually.  The  court  in 
Lord  Dunraven  v.  Llewellyn  assumes  as  a  fact  that  such  grants  were  actually 
made  in  the  case  before  it,  according  to  the  explanation  given  by  Lord  Coke. 
And  in  many  cases  it  may  be  taken  as  historically  true  that  such  grants  were 
made.  But  rights  of  common  were  far  more  important  in  ancient  times  than 
they  are  at  present, (e)  and  in  many  places  in  England  they  appear  to  have 
existed  long  before  the  feudal  rules  of  tenure  were  introduced  by  the  Normans. 
Lot  meads,  in  particular,  were  of  Saxon  or  German  rather  than  of  Norman 
origin.  And  there  is  reason  to  believe  that  the  rights  of  common  over  common 
field  lands,  about  which  the  Court  of  Exchequer,  in  the  twenty-seventh  year  of 
the  reign  of  Queen  Elizabeth,  confessed  themselves  "  at  first  altogether  igno- 
rant,'^/) were  at  least  of  Saxon,  if  not  in  many  cases  *of  ancient  Brit-  rt-nr>-. 
ish  origin. (^7)  Agriculturists  were  not  then  very  enterprising.  An  L 
"  assart,"  or  reclamation  of  waste,  was  of  rare  occurrence. (h)  The  British 
cultivators  were  often  left  by  the  Saxon  conquerors,  and  the  Saxons  by  the 
Normans;  and  each  retained  their  ancient  customs,  which  by  degrees  grew  up 
into  rights. (i)  The  Norman  lawyers  applied  as  best  they  could  the  feudal  rules 
of  tenure  to  the  state  of  things  they  found  actually  existing.  The  notions  about 
property  were  then  unripe. (k)  So  long  as  a  man  could  feed  his  horse  or  his 
cow  on  the  waste,  put  his  hogs  into  the  woods  to  grub  for  acorns,  and  cut 
timber  for  fuel  or  repairs,  it  was  not  of  the  slightest  consequence  to  him  whether 
the  property  in  the  wastes  and  woods  was  in  himself  or  in  somebody  else.     In 

'  (e)  See  Mr.  Beale's  suggestive  Essay  on  Commons  Preservation,  Essays,  p.  109; 
Abbreviatio  Placitorum,  Mich.  4  John.,  p.  36 ;  Trin.  4  John.,  p.  40  ;  Easter,  7  &  8  John., 
p.  51. 

(/)  Sir  Miles  Corbet's  Case,  7  Rep.  5  b. 

(g)  See  Archteologia,  vol.  34,  p.  Ill,  vol.  37,  p.  383.  See  also  post,  as  to  the  Welsh 
custom  of  co-tillage.  The  Saxon  term  "yard  land"  is,  according  to  the  author's  ex- 
perience, generally  applied  to  lands  in  common  fields. 

(A)  Essarts,  or  assarts,  are  mentioned  but  rarely  in  Domesday.  Sir  H.  Ellis's  Intro- 
duction to  Domesday,  vol.  1,  p.  102. 

(?)  1  Sharon  Turner's  Anglo-Saxons,  324,  325 ;  2  lb.  542,  543  ;  Palgrave's  Rise  and 
Progress  of  the  English  Commonwealth,  vol.  1,  pp.  26,  27,  28,  38,  77. 

(k)  See  Palgrave,  vol.  1,  pp.  71  el  seq. 


503  APPENDIX. 

Domesday,  as  we  have  seen,  woods  are  usually  measured  only  by  the  number  of 
pigs  they  can  feed.  Many  forests,  moors,  and  marshes,  being  quite  unprofitable 
and  often  inaccessible,  do  not  appear  to  have  been  taken  into  account.  When 
it  became  necessary  that  they  should  have  some  legal  owner,  the  lord  of  the 
manor  was  the  only  person  in  whom  the  ownership  could  be  considered  to  vest. 
But  the  right  of  a  tenant  of  arable  land  to  put  his  cattle  on  the  waste  probably 
existed  in  many  cases  quite  irrespective  of  any  actual  grant.  The  tenant  and 
his  rights  were  there  already,  and  the  feudal  law  adapted  itself  to  the  existing 
circumstances,  giving  to  the  lord  the  property  in  the  waste,  and  to  the  tenant  the 
right  of  taking  the  herbage  by  the  mouths  of  his  cattle. 

The  following  passage  from  Maine's  Ancient  Law(?)  illustrates  the  sort  of 
change  that  probably  took  place.     Speaking  of  the  rule  of  primogeniture  he 
says : — "  The  *ideas  and  social  forms  which  contributed  to  the  forma- 
•-  *    "  tion  of  the  system  were  unquestionably  barbarian  and  archaic ;  but 

"  as  soon  as  courts  and  lawyers  were  called  in  to  interpret  and  define  it,  the 
"  principles  of  interpretation  which  they  applied  to  it  were  those  of  the  latest 
"  Roman  jurisprudence,  and  were  therefore  excessively  refined  and  matured. 
"  In  a  patriarchally  governed  society,  the  eldest  son  may  succeed  to  the  govern- 
"  ment  of  the  agnatic  group,  and  to  the  absolute  disposal  of  its  property.  But 
"  he  is  not  therefore  a  true  proprietor.  He  has  correlative  duties  not  involved 
"  in  the  conception  of  proprietorship,  but  quite  undefined  and  quite  incapable 
"  of  definition.  The  later  Roman  jurisprudence,  however,  like  our  own  law, 
"  looked  upon  uncontrolled  power  over  property  as  equivalent  to  ownership,  and 
"  did  not,  and  in  fact  could  not,  take  notice  of  liabilities  of  such  a  kind  that  the 
"  very  conception  of  them  belonged  to  a  period  anterior  to  regular  law.  The 
"  contact  of  the  refined  and  the  barbarous  notion  had  inevitably  for  its  effect 
"  the  conversion  of  the  eldest  son  into  legal  proprietor  of  the  inheritance.  The 
"  clerical  and  secular  lawyers  so  defined  his  position  from  the  first ;  but  it  was 
"  only  by  insensible  degrees  that  the  younger  brother,  from  participating  on 
"  equal  terms  in  all  the  dangers  and  enjoyments  of  his  kinsman,  sank  into 
"  the  priest,  the  soldier  of  fortune,  or  the  hanger-on  of  the  mansion.  The  legal 
"revolution  was  identical  with  that  which  occurred  on  a  smaller  scale  and  in 
"  quite  recent  times  through  the  greater  part  of  the  Highlands  of  Scotland. 
"When  called  in  to  determine  the  legal  powers  of  the  chieftain  over  the 
"  domains  which  gave  sustenance  to  the  clan,  Scottish  jurisprudence  had  long 
"  since  passed  the  point  at  which  it  could  take  notice  of  the  vague  limitations 
"on  completeness  of  dominion  imposed  by  the  claims  of  the  clansmen,  and  it 
"  was  inevitable  therefore  that  it  should  convert  the  patrimony  of  many  into  the 
"  estate  of  one." 

A  change  of  a  somewhat  similar .  nature  appears  to  have  taken  place  in  the 
principality  of  Wales.     The  land  in  dispute  in  the  case  of  Lord  Dunraven  v. 

(I)  P.  237,  1st  edit. 


APPENDIX.  504 

Llewellyn  was  situate  in   the   county  of  Glamorgan  in  Wales.     Wales,  as  is 
*well  known,  was  conquered  by  King  Edward  the  First,  who,  by  the    r*KQK-i 
Statutum  Wallise,  12  Edw.  I.,  sometimes  called  the  statute  of  Rhuddlan, 
subjected  a  great  part  of  it,  principally  the  northern  portion,  to  English  law.(m) 
Before  this  time  large  tracts  of  land  had  doubtless  been  given  to  Englishmen, 
who  vanquished  the  natives  and  took  their  lands.     But  the  rest  of  Wales  was 
o-overned  by  its  own  laws  and  customs,  of  which  copies  and  translations  were 
published  in  the  year  1841,  under  the  direction  of  the  commissioners  of  public 
records.     In  one  of  these  it  is  thus  provided  : — "  Three  things  that  are  not  to  be 
"  done  without  the  permission  of  the  lord  and  his  court :   building  on  a  waste, 
"  ploughing  on  a  waste,  and  clearing  wild  land  of  wood  on  a  waste;  and  there 
"  shall  be  an  action  for  theft  against  such  as  shall  do  so,  because  every  wild  and 
"  waste  belongs  to  the  country  and  kindred  in  common,  and  no  one  has  a  right  to 
"  exclusive  possession  of  much  or  little  of  land  of  that  kind."(V)     Again  it  is 
said  that  "  every  habitation  ought  to  have  a  bye-road  to  the  common  waste  of 
"  the  '  trev'  or  vill."(o)     So  an  oak,  a  birch,  or  a  witch  elm  could  not  be  cut 
without  the  permission  of  the  country  and  lord  ;(p)  but  any  person  might  take 
fuel  from  a  decayed  or  hollow  tree.(j)     As  land  was  inalienable,  and  descended 
equally  amongst  all  the  sons,  the  landowners  in  the  same  place  were  probably  in 
most  cases  of  kin  to  one  another.     Hume  says  in  his  History  of  England,(r) 
speaking   of  the   time   of  the   conquest  by  Edw.  I. — "The  rude  and   simple 
"  manners  of  the  natives,  as  well  as  the  mountainous  situation  of  their  country, 
"  had  made  them  entirely  neglect  tillage  and  trust  to  pasturage  alone  for  their 
"  subsistence."     This  statement,  however,  appears  too  sweeping.     The  wars   in 
which  they  were  then  engaged  *were  more  probably  the  cause  of  their    r*5ot;-| 
neglect  of  tillage.     Many  of  their  ancient  laws  relate  to  agriculture ; 
their  lands  appear  to  have  been  cultivated  by  a .  system  of  co-tillage,  the  land 
when  ploughed  being  divided  into  twelve  parts — the  first  for  the  ploughman, 
another  to  the  irons,(s)  another  to  the  driver,  another  to  the  plough,  and  the  rest 
to  the  owners  of  the  eight  oxen  that  formed  the  team.(i)     Co-tillage  of  waste  is 
elsewhere  said  to  be  one  of  the  immunities  of  an  innate  Cymro  or  Welshman, (u) 
and  without  co-tillage  it  is  gravely  said  no  country  can  support  itself  in  peace 

(m)  See  1  Bl.  Com.  93,  94  ;  Hale's  Hist,  of  Common  Law,  p.  248  et  seq. ;  2  Reeves's 
Hist.  Eng.  Law,  ch.  9,  p.  92. 

(n)  Cyvreithiau  Cymru,  Welsh  Laws,  bk.  13,  ch.  2,  No.  101,  p.  655,  fol.  edit,  by 
Record  Commissioners. 

(o)  Welsh  Laws,  bk.  9,  ch.  25,  No.  8,  p.  525,  fol.  edit,  by  Record  Commissioners. 

(p)  Ibid.  bk.  13,  ch.  2,  No.  238. 

(g)  Ibid.  bk.  10,  ch.  7,  No.  9  ;  bk.  13,  ch.  2,  No.  102. 

(r)  Vol.  2,  pp.  240,  241,  8vo  edit.  1802. 

(s)  Compare  1  Ellis's  Introduction  to  Domesday,  p.  266,  where  it  appears  that  certain 
tenants  were  bound  to  furnish  irons  for  the  lord's  ploughs. 

(t)  The  Venedotian  Code,  bk.  3,  ch.  24,  par.  3,  p.  153,  fol.  edit,  by  Record  Com- 
missioners. 

(w)  Welsh  Laws,  bk.  13,  ch.  2,  No.  83,  p.  651,  fol.  edit. 


506  APPENDIX. 

and  social  union. (x)  No  trace  appears,  so  far  as  the  author  has  been  able  to 
discover,  of  any  mere  right  of  common  of  pasture,  according  to  the  notions  of 
English  law.  At  the  time  of  the  conquest,  Llewellyn,  the  native  prince,  granted 
four  "  cantrevs,"  or  four  hundred  trevs  or  vills,  to  the  king,  besides  other  lands ; 
and  in  the  document  by  which  this  grant  was  effected  the  king  grants  that  all 
holding  lands  in  the  four  cantrevs  and  other  lands  aforesaid  which  our  lord  the 
king  holds  in  his  own  hands  (except  those  to  whom  the  king  shall  refuse  to  do 
this  favor),  shall  hold  them  as  freely  and  fully  as  before  the  war  they  were  ac- 
customed to  hold,  and  shall  enjoy  the  same  liberties  and  customs  which  before 
they  were  accustomed  to  enjoy ;  so  that  they,  who  held  of  the  prince,  for  the 
future  shall  hold  those  lands  of  the  king  and  his  heirs  by  the  accustomed  ser- 
vices.^) This  grant  was  substantially  carried  out  by  the  Statute  of  Wales 
before  mentioned.  But  the  alteration  made  by  the  introduction  of  writs  similar 
to  those  then  used  in  England  of  necessity  led  to  a  system  of  law  conformable 

r^fWI  t0  tllose  writs"  Am0D»st  otber  writs  sPecifically  introduced  *by  the 
^  statute  was  the  writ  of  novel  disseisin   of  common   of  pasture.     This 

writ,  as  given  by  the  statute,  is  in  the  following  form : — "  A.  complains  to  us 
"  that  B.  and  C.  unjustly  and  without  judgment  disseised  him  of  common  of 
"  pasture,  which  belongs  to  his  free  tenement  in  such  a  vill,  or  another  if  the 
"  case  requires  it,  after  the  peace  proclaimed  in  Wales  in  the  twelfth  year  of 
"  our  reign."(z)  This  form  of  writ  is  similar  to  that  given  in  Fitzherbert's 
Natura  Brevium,{a)  and  "  lieth,"  as  he  says,  ::  where  a  man  hath  common  of 
"  pasture  appendant  or  appurtenant  to  his  manor,  or  house  or  land,  which  he 
"  hath  for  term  of  life,  or  in  fee  simple  or  in  fee  tail ;  if  he  be  disturbed  of  his 
"  common,  so  that  he  cannot  take  it  as  he  ought  to  do,  he  shall  have  an  assize 
"  of  novel  disseisin  thereof."  A  Welshman,  therefore,  who  had  been  disturbed 
in  his  enjoyment  of  the  common  wastes,  would  have  had  no  remedy  but  to  sue 
out  this  writ. 

The  nature  of  the  remedy  ascertained  to  an  English  lawyer  the  nature  of  the 
rio-ht.  The  common  now  belonged  to  the  tenement.  The  refined  distinctions 
between  appendant  and  appurtenant  are  not  noticed  in  the  writ,  and  were  prob- 
ably the  work  of  a  later  age.  But  here  was  an  incorporeal  tenement  only  be- 
lonoino-  to  a  corporeal  one.  The  writ,  as  Fitzherbert  remarks,  does  not  say  that 
the  claimant  is  disseised  of  his  freehold,  as  was  done  in  the  case  of  land,  but 
only  of  his  common  of  pasture  belonging  to  his  freehold.(b)  Here  was  an  end 
of  any  claim  to  the  soil  of  the  waste.  All  the  tenants  who  had  been  accustomed 
to  put  their  cattle  on  the  waste  had  their  rights  defined  more  accurately  than 
before,  but  narrowed  also  to  fit  the  definition.     This  appears  to  have  been  the 

(x)  Welsh  Laws,  bk.  13,  ch.  2,  No.  46,  p.  638. 

(y)  Articulorum  pacis  cum  rege  Angliae  ratificatio  per  Llewelinum  principem  Wallia?, 
a.d.  1277,  Rymer's  Foedera,  vol.  2,  pp.  88-90. 
(z)  P.  866  of  fol.  edit,  by  Record  Commissioners. 
(a)  Vol.  2,  p.  179.  (i)  Fitz.  Nat.  Brev.  vol.  2,  p.  179. 


APPENDIX.  507 

actual  origin  of  common  appendant  in  most  parts  of  the  principality  of  Wales, 
and  if  this  be  so,  that  right,  in  that  country  at  least,  has  had  its  origin,  not  in' 
a  number  of  actual  separate  grants  made  by  the  lord  to  certain  tenants,  but  in 
the  adaptation  of  the  ancient  rights  *of  the  freeholders  as  a  class  to  the 
remedies  prescribed  by  English  law.  [*508] 

The  County  of  Glamorgan,  in  which  the  lands  in  dispute  in  the  case  of  Lord 
Dunraven  v.  Llewellyn  were  situate,  does  not  appear  to  have  been  comprised  in 
the  grant  made  by  Prince  Llewellyn  to  King  Edward  I.(c)     The  lordship  of 
this  county  appears  to  have  been  acquired  by  the  crown  from  Anne,  Countess  of 
Warwick,   whose  daughter  married  Richard,  Duke   of  Gloucester,   afterwards 
Richard  III.,  King  of  England.     Anne,  Countess  of  Warwick,  was  a  descendant 
of  one  Robert  Fitzhamon  (a  great  lord  and  kinsman  of  William  the  Conqueror), 
who  acquired  the  lordship  of  Glamorgan  by  conquest  from  the  Welsh  in   the 
fourth  year  of  the  reign  of  King  William  Rufus,  and  who  gave  the  castle  and 
manor  of  Ogmore  to  William  de  Londres  Knight,  in  reward  for  his  services/,/) 
And  by  a  statute  of  the  reign  of  King  Henry  VIIL(e)  it  was  provided  that  after 
the  feast  of  All  Saints  then  next  coming  justice  should  be  ministered  and  exe- 
cuted to  the  king's  subjects  and  inhabitants  of  the  said  County  of  Glamorgan 
according  to  the  laws,  customs,  and  statutes  of  the  realm  of  England,  and  after 
no  Welsh  laws,  in  such  form  and  fashion  as  justice  was  ministered  and  used  to 
the  king's  subjects  within  the  three  shires  of  North  Wales.     This  statute  pre- 
served the   equal  descent  amongst  all  the  sons   then  prevalent  in   Wales,(/) 
which,  however,  was  abolished  by  a  subsequent  act  of  the  same  reign.(^)     In'  the 
case  of  Lord  Dunraveu  v.  Llewellyn,  the  lord  who  claimed  the  land  in  dispute  as 
part  of  the  waste  tendered,  as  we  have  seen,  evidence  of  reputation— that  so  it 
was  considered  by  the  commoners.     This  evidence  was  rejected,  and  *the 
commoners  were  not  considered  as  a  body  or  class,  because  certain  tenants    C*509] 
only— namely,  the  tenants  of  arable  lands— have  by  law  a  right  to  common  ap- 
pendant.    If,  however,  the  dispute  had  been  between  the  rector  of  the  parish 
and  an  occupier  of  arable  land,  with  respect  to  a  parochial  modus  payable  in 
lieu  of  great  tithe,  evidence  of  reputation  would  have  been  clearly  admissible. (A) 
And  yet  the  question  would  have  been  one  which  did  not  concern  every  occu- 
pier of  land  in  the  parish,  for  the  occupier  of  pasture  land  paid  no  great  tithe. 
The  tithe  of  agistment  of  pasture  was  a  small  tithe  only.(t;     This  Exception, 
however,  arising  as  it  did  from  the  nature  of  the  subject  of  occupancy,  did  not 
prevent  the  other  occupiers  from  being  treated  as  a  class.     So  in  the  case  of 

(c)  See    an    interesting   article    on    the    political    geography  of  Wales,    by  Henry 
Salusbury  Milman,  Esq.,  in  the  Archseologia,  vol.  38,  p.  19. 

(d)  Stradling's  Winning  of  Glamorgan   from    the   Welsh,   printed   in   Caradoc   of 
Llancarvan's  History  of  Wales,  a.  d.  1774,  pp.  xxiii,  xxvi,  xxix,  xxxi. 

(e)  Stat.  27  Hen.  VIII.  c.  26,  s.  14.  (/)  Stat.  27  Hen.  VIII.  c.  26,  s.  35. 
(ff)  Stat.  34  &  35  Hen.  VIII.  c.  26,  ss.  91,  128. 

(A)   White  v.  Lisle,  4  Mad.  214,  225.  (?)   l  Eagle  on  Tithes  44. 


509  APPENDIX. 

common  appendant,  the  exceptions  which  arise  from  the  nature  of  a  certain  hold- 
ings should  not  prevent  the  claimants,  who  all  claim  under  one  common  title — 
namely,  a  right  given  by  the  law  itself — from  being  considered  as  a  class  of  per- 
sons, with  respect  to  whose  rights  evidence  of  reputation  is  admissible. 

If  the  commoners  who  claimed  common  appendant  for  their  commonable 
beasts  had  claimed  by  the  custom  of  the  manor  a  right  to  put  on  the  waste 
beasts  not  commonable,  such  as  geese  and  pigs,  evidence  of  reputation  would 
have  been  admissible  on  the  ground  that  a  custom  was  in  dispute. (&)  But  such 
evidence  is  admissible  in  the  case  of  a  custom  solely  on  the  ground  that  a  custom 
affects  a  class  or  body  of  persons  in  a  particular  place.(7)  Can  it  be  said  that 
the  commoners  are  less  a  class  when  the  custom  of  the  manor  coincides  with 
the  common  law,  which  is  the  general  custom  of  the  realm,  than  when  it  differs 
from  it  ? 

It  may  be  said  that  common  appendant  at  the  present  day  is  comparatively 
rare,  that  many  such  rights  have  now  become  extinguished,  and  that,  supposing 
a  single  right  to  *remain  in  a  manor,  ought  evidence  of  reputation  to  be 
-1  given  in  support  of  it  ?  The  answer  is,  that  this  depends  upon  the  man- 
ner in  which  the  claimant  frames  his  claim.  He  may  choose  to  rely  on  his  con- 
tinuous enjoyment  of  the  right  of  common  in  respect  of  his  tenement,  or  he  may 
claim  the  benefit  of  the  provisions  with  liability  to  the  limitations  of  the  Pre- 
scription Act;(m)  but  he  will  not  then  be  able  to  avail  himself  of  the  former 
exercise  of  similar  rights  in  respect  of  other  tenements  holden  of  the  same  manor. 
If,  however,  he  claim  his  common  as  appendant,  there  seems  no  reason  why,  in 
relying  on  a  general  right,  he  should  not  have  tbe  benefit  of  evidence  of  reputa- 
tion as  to  similar  rights  once  existing  but  now  extinct.  Reputation  is  admissi- 
ble as  to  the  boundaries  of  a  manor,  and  none  the  less  though  the  manor  as  such 
has  ceased  to  exist.  (V)  The  cessor,  therefore,  of  any  general  right  ought  not  to 
prevent  the  admission  of  evidence  of  reputation  as  to  its  former  existence.  The 
cases  as  to  customs  afford  an  analogy.  If  all  the  copyholds  but  one,  parcel  of  a 
certain  manor,  should  become  extinct,  the  tenant  of  that  one  may,  if  he  pleases, 
allege  a  customary  right  of  common  as  belonging  to  that  tenant  only  ;(o)  but 
in  that  case  he  cannot  adduce  evidence  of  the  enjoyment  of  a  similar  right  by 
other  tenants  of  the  same  manor. (p)  He  must  prove  the  custom  as  he  alleges 
it.(q)     He  may,  however,  if  he  pleases,  allege  the  right  as  belonging  by  custom 

(7c)  Damerell  v.  Protheroe,  10  Q.  C.  20  (E.  0.  L.  R.  vol.  59)  ;  Prichard  v.  Powell,  10 
Q.  B.  589,  603  (E.  C.  L.  R.  vol.  59),  as  explained  in  Lord  Dunraven  v.  Llewellyn,  ante, 
p.  492. 

(I)  Jones  v.  Robin,  10  Q.  B.  581,  583,  620,  635  (E.  C.  L.  R.  vol.  59). 

(m)  Stat.  2  &  3  Will.  IV.  c.  71,  ante,  p.  459. 

(n)  Steel  v.  Prickett,  2  Stark.  463  (E.  C.  L.  R.  vol.  3) ;  Doe  d.  Molesworth  v.  Slee- 
man,  9  Q.  B.  298  (E.  C.  L.  R.  vol.  58) ;  and  see  Barnes  v.  Mawson,  1  Mau.  &  Sel.  77. 

(o)  Bac.  Abr.  tit.  Copyhold  (E) ;  Foiston  and  Crachroode's  Case,  4  Rep.  31  b. 

(p)  Wilson  v.  Page,  4  Esp.  71.  (?)  Dunstan  v.  Tresider,  5  T.  Rep.  2. 


APPENDIX.  510 

to  all  the  customary  tenements  of  the  manor,(V)  and  in  that  case  evidence  as  to 
the  other  tenements  will  be  admissible  in  his  behalf;  but  at  the  same  time  he 
will  expose  his  claim  to  be  met  by  evidence  relating  to  any  other  tenement  in 
the  manor  standing  in  the  same  situation  as  his  own.(s) 

*For  these  reasons  the  author  is  of  the  opinion  that  the  case  of  Lord    r*- -.-.-. 
Dunraven  v.  Llewellyn  was,  on  the  point  in  question,  wrongly  decided. 
There  was  another  point  decided,  namely,  this,  that  evidence  of  actual  exercise 
is  not  essential  to  the  admission  of  evidence  of  reputation.     With  this  decision 
the  author  has  no  fault  to  find. 


*APPENDIX  D.  [*512] 

Referred  to,  pp.  200,  304,  447. 

A  Deed  of  Grant. 

This  Indenture  made  the  second  day  of  January(a)  [in  the  eleventh  year 
of  the  reign  of  our  Sovereign  Lady  Queen  Victoria  by  the  grace  of  God  of  the 
United  Kingdom  of  Great  Britain  and  Ireland  Queen  Defender  of  the  Faith 
and]  in  the  year  of  our  Lord  1848  Between  A.  B.  of  Cheapside  of  the  city  of 
London  Esquire  of  the  first  part  C.  D.  of  Liucoln's  Inn  in  the  county  of  Mid- 
dlesex Esquire  of  the  second  part  and  Y.  Z.  of  Lincoln's  Inn  aforesaid  gentleman 
of  the  third  part(6)  Whereas  by  indentures  of  lease  and  release  bearing  date 
respectively  on  or  about  the  first  and  second  days  of  January  1838  and  respect- 
ively made  or  expressed  to  be  made  between  E.  F.  therein  described  of  the  one 
part  and  the  said  A.  B.  of  the  other  part  for  the  consideration  therein  nieu- 
tioned  the  messuage  or  tenement  lands  and  hereditaments  hereinafter  described 
and  intended  to  be  hereby  granted  with  the  appurtenances  were  conveyed  and 
assured  by  the  said  E.  F.  unto  and  to  the  use  of  the  said  A.  B.  his  heirs  and 
assigns  forever  And  Whereas  the  said  A.  B.  hath  contracted  and  agreed 
with  the  said  C.  D.  for  the  absolute  sale  to  him  of  the  inheritance  in  fee  simple 
in  possession  of  and  in  the  said  messuage  or  tenement  lands  and  hereditaments 
hereinbefore  referred  to  and  hereinafter  described  with  the  appurtenances  free 

(r)  See  Potter  v.  North,  1  Wms.  Saund.  346,  348  ;   1  Lev.  268. 

(s)  1  Scriv.  Cop.  597,  3d  edit.;  Cort  v.  Birkbeck,  1  Doug.  218,  219,  223;  Freeman  v. 
Phillipps,  4  Mau.  &  Sel.  486,  495. 

(a)  The  words  within  brackets  are  now  usually  omitted. 

(b)  The  reason  why  Y.  Z.  is  made  a  party  to  this  deed  is,  that  the  widow  of  C.  D.,  if 
married  on  or  before  the  1st  of  January,  1834,  may  be  barred  or  deprived  of  her  dower. 
See  ante,  pp.  303,  304.  If  this  should  not  be  intended,  the  deed  would  be  made  be- 
tween A.  B.  of  the  one  part,  and  C.  D.  of  the  other  part,  as  in  the  specimen  given, 
p.  190. 

29 


512  APPENDIX. 

from  all  incumbrances  at  or  for  the  price  or  sum  of  one  thousand  pounds 
r*K-|q-i  *Now  this  Indenture  Witnesseth  that  for  carrying  the  said  con- 
tract for  sale  into  effect  and  in  consideration  of  the  sum  of  one  thous- 
and pounds  of  lawful  money  of  Great  Britain  to  the  said  A.  B.  in  hand  well  and 
truly  paid  by  the  said  C.  B.  upon  or  immediately  before  the  sealing  and  delivery 
of  these  presents  (the  receipt  of  which  said  sum  of  one  thousand  pounds  in  full 
for  the  absolute  purchase  of  the  inheritance  in  fee  simple  in  possession  of  and  in 
the  messuage  or  tenement  lands  and  hereditaments  hereinafter  described  and 
intended  to  be  hereby  granted  with  the  appurtenances  he  the  said  A.  B.  doth 
hereby  acknowledge  and  of  and  from  the  same  and  every  part  thereof  doth 
acquit  release  and  discharge  the  said  C.  B.  his  heirs  executors  administrators 
and  assigns  [and  every  of  them  for  ever  by  these  presents]  He  the  said  A.  B. 
Hath  granted  and  confirmed  and  by  these  presents  Both  grant  and  confirm 
unto  the  said  C.  B.  and  his  heirs(r)  All  that  messuage  or  tenement  situate 
lying  and  being  at  &c.  commonly  called  or  known  by  the  name  &c.  {here  describe 
the  premises)  Together  with  all  and  singular  the  houses  outhouses  edifices 
buildings  barns  dovehouses  stables  yards  gardens  orchards  lights  easements 
ways  paths  passages  waters  watercourses  trees  woods  underwoods  commons  and 
commonable  rights  hedges  ditches  fences  liberties  privileges  emoluments  com- 
modities advantages  hereditaments  and  appurtenances  whatsoever  to  the  said 
messuage  or  tenement  lands  hereditaments  and  premises  hereby  granted  or 
intended  so  to  be  or  any  part  thereof  belonging  or  in  anywise  appertaining  or 
r*^14T  w*tn  t'ne  same  or  any  part  thereof  *now  or  any  time  heretofore  usually 
held  used  occupied  or  enjoyed  [or  accepted  reputed  taken  or  known  as 
part  parcel  or  member  thereof]  And  the  reversion  and  reversions  remainder 
and  remainders  yearly  and  other  rents  issues  and  profits  of  the  same  premises 
and  every  part  thereof  And  all  the  estate  right  title  interest  use  trust  inherit- 
ance property  possession  benefit  claim  and  demand  whatsoever  both  at  law  and 
in  equity  of  him  the  said  A.  B.  in  to  out  of  or  upon  the  said  messuage  or  tene- 
ment lands  hereditaments  and  premises  hereby  granted  or  intended  so  to  be 
and  every  part  and  parcel  of  the  same  with  their  and  every  of  their  appurte- 
nances And  all  deeds  evidences  and  writings  relating  to  the  title  of  the  said 
A.  B.  to  the  said  hereditaments  and  premises  hereby  granted  or  intended  so  to 
be  now  in  the  custody  of  the  said  A.  B.  or  which  he  can  procure  without  suit  at 
law  or  in  equity     To  have  and  To  hold  the  said  messuage  or  tenement  lands 

(c)  If  the  deed  were  dated  at  any  time  between  the  month  of  May,  1841  (the  date  of 
the  statute  4  &  5  Vict.  c.  21  ;  ante,  pp.  180,  187),  and  the  first  of  January,  1845  (the 
time  of  the  commencement  of  the  operation  of  the  Transfer  of  Property  Act,  ante,  p. 
180),  the  form  would  be  as  follows  :  <;  He  the  said  A.  B.  Doth  by  these  presents  (being 
"  a  deed  of  release  made  in  pursuance  of  an  Act  of  Parliament  made  and  passed  in  the 
"  fourth  year  of  the  reign  of  her  present  Majesty  Queen  Victoria  intituled  An  Act  for 
"  rendering  a  Release  as  effectual  for  the  Conveyance  of  Freehold  Estates  as  a  Lease 
"  and  Release  by  the  same  Parties)  grant  bargain  sell  alien  release  and  confirm  unto 
"  the  said  C.  D.  and  his  heirs." 


APPENDIX.  514 

and  hereditaments  hereinbefore  described  and  all  and  singular  other  the  premises 
hereby  granted  or  intended  so  to  be  with  their  and  every  of  their  rights  mem- 
bers and   appurtenances  unto  the  said  C.   D.  and  his  heirs(r?)     To  such  uses 
upon  and  for  such  trusts  intents  and  purposes  and  with  under  and  subject  to 
such  powers  provisoes  declarations  and  agreements  as  the  said  C.  D.  shall  from 
time  to  time  by  any  deed  or  deeds  instrument  or  instruments  in  writing  with  or 
without  power  of  revocation  and  new  appointment  to  be  by  him  sealed  and 
delivered  in  the  presence  of  and  to  be  attested  by  two  or  more  credible  witnesses 
direct  limit  or  appoint     And  in  default  of  and  until  any  such  direction  limita- 
tion or  appointment  and  so  far  as  any  such  direction  limitation  or  appointment 
if  incomplete  shall  not  extend  To  the  use  of  the  said  C.  D:  and  his  assigns  for 
and  during  the  term  of  his  natural  life  without  impeachment  of  waste     And 
from  and  after  the  determination  of  that  estate  by  forfeiture  or  otherwise  in  his 
lifetime   To  the  use  of  the  said  Y.  Z.  and  his  heirs  during  the  life  of  the  said 
C.  D.     In  trust  nevertheless  for  him  the  said  C.  D.  and  his  *assigns    r*5i5-| 
and  after  the  decease  of  the  said  C.  D.  To  the  use  of  the  said  C  D.  his 
heirs  and   assigns   for  ever     And   the  said   A.  B.  doth  hereby  for  himself  his 
heirs(e)  executors  and  administrators  covenant  promise  and  agree  with  and  to 
the  said   C.  D.  his  appointees  heirs  and  assigns  in  manner  following  that  is  to 
say  that  for  and  notwithstanding  any  act  deed  matter  or  thing  whatsoever  by 
him  the  said  A.  B.  or  any  person  or  persons  lawfully  or  equitably  claiming  or 
to  claim  by  from  through  under  or  in  trust  for  him  made  done  or  committed  to 
the  contrary(/)  [he  the  said  A.  B.  is  at  the  time  of  the  sealing  and  delivery  of 
these  presents  lawfully  rightfully  and  absolutely  seised  of  or  well  and  sufficiently 
entitled  to  the  messuage  or  tenement  lands  hereditaments  and  premises  hereby 
^ranted  or  intended  so  to  be  with  the  appurtenances  of  and  in  a  good  sure 
perfect   lawful  absolute  and  indefeasible   estate  of  inheritance  in  fee  simple 
without  any  manner   of  condition   contingent  proviso  power  of  revocation   or 
limitation  of  any  new  or  other  use  or  uses  or  any  other  matter  restraint  cause  or 
thing  whatsoever  to  alter  change  charge  revoke  make  void  lessen  or  determine 
the  same  estate     And  that  for  and  notwithstanding  any  such   act  matter  or 
thing  as  aforesaid  he  the  said  A.  B.  now  hath  in  himself  good  right  full  power 
and  lawful  and  absolute  authority  to  grant  and  confirm  the  said  messuage  or 
tenement  lands  hereditaments  and  premises  hereinbefore  granted  or  intended  so 
to  be  with  their  appurtenances  unto  the  said  C.  D.  and  his  heirs  to  the  uses  and 
in  manner  aforesaid  and  according  to  the  true  intent  and  meaning  of  these  pres- 
ents   And  that  the  same  messuage  or  tenement  lands  hereditaments  and  premises 
with  the  appurtenances  shall  and  lawfully  may  accordingly  from  time  to  time 
and  at  all  times  hereafter  be  held  and  enjoyed  and  the  rents  issues  and  profits 
thereof  received  and  taken  by  the  said  C.  D.  his  appointees  heirs  and  assigns  to 

(d)  If  C.  D.  was  not  married  on  or  before  the  1st  of  January,  1834,  or  if,  having  been 
so  married,  the  dower  of  his  widow  should  not  be  intended  to  be  barred,  the  form  would 
here  simply  be  "  To  the  use  of  the  said  C.  D.  his  heirs  and  assigns  for  ever." 

(e)  See  ante,  pp.  80,  81.  (/)  See  ante,  p.  447. 


515  APPENDIX. 

and  for  his  and  their  own  absolute  use  and  benefit  without  any  lawful  let  suit 
trouble  denial  hindrance  eviction  ejection  molestation  disturbance  or  interruption 
whatsoever  of  from  or  by  the  said  A.  B.  or  any  person  or  persons  lawfully  or 
equitably  claiming  or  to  *claim  by  from  through  under  or  in  trust  for  him 
^  J  And  that(g)  free  and  clear  and  freely  and  clearly  acquitted  exonerated 
and  discharged  or  otherwise  by  him  the  said  A.  B.  his  heirs  executors  or  admin- 
istrators well  and  sufficiently  saved  defended  kept  harmless  and  indemnified  of 
from  and  against  all  and  all  manner  of  former  and  other  [gifts  grants  bargains 
sales  leases  mortgages  jointures  dowers  and  all  right  and  title  of  dower  uses 
trusts  wills  entails  statutes  merchant  and  of  the  staple  recognizances  judgments 
extents  executions  annuities  legacies  payments  rents  and  arrears  of  rent  for- 
feitures re-entries  cause  and  causes  of  forfeiture  and  re-entry  and  of  from  and 
against  all  and  singular  other]  estates  rights  titles  charges  and  incumbrances 
whatsoever  had  made  done  committed  executed  or  willingly  suffered  by  him  the 
said  A.  B.  or  any  person  or  persons  lawfully  or  equitably  claiming  or  to  claim 
by  from  through  under  or  in  trust  for  him.  And  moreover  that  he  the  said 
A.  B.  and  his  heirs  and  all  and  every  persons  and  person  having  or  lawfully 
claiming  or  who  shall  or  may  have  or  lawfully  claim  any  estate  right  title  or 
interest  whatsoever  at  law  or  in  equity  in  to  or  out  of  the  said  messuage  or 
tenement  lands  hereditaments  and  premises  hereinbefore  granted  or  intended  so 
to  be  with  their  appurtenances  by  from  through  under  or  in  trust  for  him  or 
them  shall  and  will  from  time  to  time  and  at  all  times  hereafter  upon  every 
reasonable  request  and  at  the  costs  and  charges  of  the  said  C.  B.  his  appointees 
heirs  and  assigns  make  do  and  execute  or  cause  or  procure  to  be  made  done  and 
executed  all  and  every  or  any  such  further  and  other  lawful  and  reasonable  acts 
deeds  things  grants  conveyances  and  assurances  in  the  law  whatsoever  for  fur- 
ther better  more  perfectly  and  effectually  granting  conveying  and  assuring  the 
said  messuage  or  tenement  lands  hereditaments  and  premises  hereinbefore 
granted  or  intended  so  to  be  with  their  appurtenances  unto  the  said  C.  B.  and 
his  heirs  to  the  uses  and  in  manner  aforesaid  and  according  to  the  true  intent 
and  meaning  of  these  presents  as  by  him  the  said  C  B.  his  appointees  heirs  or 
P^.,,--.  assigns  or  his  or  their  counsel  in  the  law  *shall  or  may  be  reasonably 
^  advised  or  devised  and  required  [so  that  no  such  further  assurance  or 

assurances  contain  or  imply  any  further  or  any  other  warranty  or  covenant  than 
against  the  person  or  persons  who  shall  make  and  execute  the  same  and  his  her 
or  their  heirs  executors  and  administrators  acts  and  deeds  only  and  so  that  the 
person  or  persons  who  shall  be  required  to  make  and  execute  any  such  further 
assurance  or  assurances  be  not  compelled  or  compellable  for  making  or  doing 
thereof  to  go  or  travel  from  his  her  or  their  dwelling  or  respective  dwellings  or 
usual  place  or  places  of  abode  or  residence]     In  Witness,  &e. 

On  the  back  is  endorsed  the  attestation  and  further  receipt  as  follows : — 
(g)  The  word  that  is  here  a  pronoun. 


APPENDIX.  517 

Signed  sealed  and  delivered  by  the  within-named  A.  B.  C.  D.  and  Y.  Z.  in 
the  presence  of  Jb^  2>oe  of  London  Gent. 

Richard  Roe  Clerk  to  Mr.  Doe. 

Received   the    day  and   year  first  within  written  of  and    from ^  the  | 

within-named    C.    D.   the    sun,    of  One    Thousand    Pounds  being  V  £1000. 

the  consideration  within  mentioned  to  be  paid  by  him  to  me.  ) 

(Signed)  A.  r>. 

Witness  John  Doe 

Richard  Roc. 


*APPENDIX  E.  [*518] 

Referred  to,  p.  229,  n.  (a). 
On  the  decease  of  a  woman  entitled  by  descent  to  an  estate  in  fee  simple,  is 
her  husband,  having  had  issue  by  her,  entitled,  according  to  the  present  law, 
to  an  estate  for  lifefby  the  curtesy  of  England,  in  the  whole  or  any  part  of  her 
share  1(a) 

In  order  to  answer  this  question  satisfactorily,  it  will  be  necessary,  first  to 
ex  mine  into  the  principles  of  the  ancient  law,  and  then  to  app  y  hose  prinm- 
pies,  when  ascertained,  to  the  law  as  at  present  existing^  J"™**1 
authorities  whence  the  principles  of  the  old  law  ought  to  be  derived ^do no a£ 
pear  to  be  quite  consistent  with  one  another;  and  the  consequence  .s  that  some 
uuLtinty1  seems  unavoidably  to  hang  over  the  question  above  propounded 
Let  ns,  however,  weigh  carefully  the  opposing  authorities,  and  endeavor  to  as- 
certain on  which  side  the  scale  preponderates. 

Littleton,  "not  the  name  of  the  author  only,  but  of  the  law  "£*»£ 
hues  curtesy.  Tenant  by  the  curtesie  of  England  is  where  a  man  taketh  a  wife 
!eis  d  in  fee  simple  or  in  fee  tail  general,  or  seised  as  heir  in  tod  especial,  and 
Wntaue  by  the  same  wife,  male  or  female,  born  'alive,  albeit  the  issue  after 
d"vX  yet  if  the  wife  dies,  the  husband  shall  hold  the  J-**™**" 
life  by  the  law  of  England.  And  he  is  called  tenant  by  the  curtesie  of  Eng- 
land/because this  is  used  in  no  other  realme,  but  in  England  only.  (6)     And, 

(„)  The  substance  of  the  following  observations  has  already  appeared  in  the  «  Jurist" 

newspaper  for  March  14,  1846. 
(b)  Litt.  s.  35. 


518  APPENDIX. 

in  a  subsequent  section,  he  adds,  "  Memorandum,  that,  in  every  case  where  a 
^  man   taketh  a  wife  seised  of  such  an  *estate  of  tenements,  &c,  as  the 

*-  J  issue  which  he  hath  by  his  wife  may  by  possibility  inherit  the  same 
tenements  of  such  an  estate  as  the  wife  hath,  as  heir  to  the  wife ;  in  this  case, 
after  the  decease  of  the  wife,  he  shall  have  the  same  tenements  by  the  curtesie 
of  England,  but  otherwise  not."(c)  "  Memorandum,"  says  Lord  Coke,  in  his 
Commentary, ((7)  "  this  word  doth  ever  betoken  some  excellent  point  of  learn- 
ing." Again,  " As  heir  to  the  wife.  This  doth  imply  a  secret  of  law ;  for,  ex- 
cept the  wife  be  actually  seised,  the  heir  shall  not  (as  hath  been  said)  make 
himself  heir  to  the  wife;  and  this  is  the  reason,  that  a  man  shall  not  be  tenant 
by  the  curtesie  of  a  seisin  in  law."  Here  we  find  it  asserted  by  Littleton  that 
the  husband  shall  not  be  tenant  by  the  curtesy,  unless  he  has  had  issue  by  his 
wife  capable  of  inheriting  the  land  as  her  heir  ;  and  this  is  explained  by  Lord 
Coke  to  be  such  issue  as  would  have  traced  their  descent  from  the  wife,  as  the 
stock  of  descent,  according  to  the  maxim,  "  seisina  facit  stipitem."  Unless  an 
actual  seisin  had  been  obtained  by  the  wife,  she  could  not  have  been  the  stock 
of  descent ;  for  the  descent  of  a  fee  simple  was  traced  from  the  person  last  ac- 
tually seised ;  "  and  this  is  the  reason,"  says  Lord  Coke,  "  that  a  man  shall  not 
be  tenant  by  the  curtesy  of  a  mere  seisin  in  law."  The  same  rule,  with  the 
same  reason  for  it,  will  also  be  found  in  Paine's  Case,(e)  where  it  is  said,  "  And 
when  Littleton  saith,  as  heir  to  the  wife,  these  words  are  very  material ;  for  that 
is  the  true  reason  that  a  man  shall  not  be  tenant  by  the  curtesy  of  a  seisin  in 
law ;  for,  in  such  a  case,  the  issue  ought  to  make  himself  heir  to  him  who  was 
last  actually  seised."  The  same  doctrine  again  appears  in  Blackstone.(y) 
"  And  this  seems  to  be  the  principal  reason  why  the  husband  cannot  be  tenant 
by  the  curtesy  of  any  lands  of  which  the  wife  was  not  actually  seised;  because, 
in  order  to  entitle  himself  to  such  estate,  he  must  have  begotten  issue  that  may 
be  heir  to  the  wife ;  but  no  one,  by  the  standing  rule  of  law,  can  be  heir  to  the 
ancestor  of  any  land,  whereof  the  ancestor  was  not  actually  seised ;  and,  there- 
r^r\9Cf[  fore,  as  the  husband  had  never  begotten  *any  issue  that  can  be  heir  to 
those  lands,  he  shall  not  be  tenant  of  them  by  the  curtesy.  And  hence," 
continues  Blackstone,  in  his  usual  laudatory  strain,  "  we  may  observe,  with  how 
much  nicety  and  consideration  the  old  rules  of  law  were  framed,  and  how  closely 
they  are  connected  and  interwoven  together,  supporting,  illustrating,  and  demon- 
strating one  another."  Here  we  have,  indeed,  a  formidable  array  of  authorities, 
all  to  the  point  that,  in  order  to  entitle  the  husband  to  his  curtesy,  his  wife  must 
have  been  the  stock  from  whom  descent  should  have  been  traced  to  her  issue ; 
for  the  principal  and  true  reason  that  there  could  not  be  any  curtesy  of  a  seisin 
in  law  is  stated  to  be,  that  the  issue  could  not,  in  such  a  case,  make  himself  heir 
to  the  wife,  because  his  descent  was  then  required  to  be  traced  from  the  person 
last  actually  seised. 

(c)  Litt.  s.  52.  (d)  Co.  Litt.  40  a. 

(e)  8  Rep.  36  a.  (/)  2  Black.  Comm.  128. 


APPENDIX.  520 

Let  us,  then,  endeavor  to  apply  this  principle  to  the  present  law.     The  act 
for  the  amendment  of  the  law  of  inheritance^)  enacts(7t)  that,  in  every  ease, 
descent  shall  be  traced  from  the  purchaser.     On  the  decease  of  a  woman  entitled 
by  descent,  the  descent  of  her  share  is,  therefore,  to  be  now  traced,  not  from 
herself,  but  from  her  ancestor,  the  purchaser  from  whom  she  inherited.     "With 
respect  to  the  persons   to  become  entitled,  as   heir  to   the  purchaser  on   this 
descent,  if  the  woman  be  a  coparcener,  the  question  arises,  which  has  already 
been   discussed, (t)  whether  the  surviving  sister  equally  with  the  issue  of  the 
deceased,  or  whether  such  issue  solely,  are   now  entitled   to  inherit  ?     And   the 
conclusion   at  which  we  arrived  was,  that  the  issue  solely  succeeded  to   their 
mother's  share.     But,  whether  this  be  so  or  not,  nothing  is  clearer  than  that,  on 
the  decease  of  a  woman  entitled  by  descent,  the  persons  who  next  inherit  take 
as   heir  to  the  purchaser,  and   not  to  her ;  for,  from  the  purchaser  alone   can 
descent  now  be  traced ;  and  the  mere  circumstance  of  having  obtained  an  actual 
seisin  does  not  now  make  the  heir  the  stock  of  descent.     How,  then,  can  her 
husband  be  entitled  to  hold  her  lands  as  tenant  by  the  curtesy  ?     If   p^.^-i 
*tenancy  by  the  curtesy  was  allowed  of  those  lands  only  of  which  the 
wife  had  obtained  actual  seisin,  because  it  was  a  necessary  condition  of  curtesy 
that  the  wife  should  be  the  stock  of  descent,  and  because  an  actual  seisin  alone 
made  the  wife  the  stock  of  descent,  how  can  the  husband  obtain  his  curtesy  in 
any  case  where  the  stock  of  descent  is  confessedly  not  the  wife,  but  the  wife's 
ancestor?     Amongst  all  the  recent  alterations  of  the  law,  the  doctrine  of  curtesy 
has  been  left  untouched ;  there  seems,  therefore,  to  be  no  means  of  determining 
any  question  respecting  it,  but  by  applying  the  old  principles  to  the  new  enact- 
ments, by  which,  indirectly,  it  may  be   affected.     So  far,  then,  as  at  present 
appears,  it  seems  a  fair  and  proper  deduction  from  the  authorities,  that,  when- 
ever a  woman  has  become  entitled  to  lands   by  descent,  her  husband   caunot 
claim  his  curtesy,  because  the  descent  of  such  lands,  on  her  decease,  is  not  to  be 
traced  from  her. 

But  by  carrying  our  investigations  a  little  further,  we  may  be  disposed  to 
doubt,  if  not  to  deny,  that  such  is  the  law ;  not  that  the  conclusion  drawn  is 
unwarranted  by  the  authorities,  but  the  authorities  themselves  may,  perhaps,  be 
found  to  be  erroneous.  Let  us  now  compare  the  law  of  curtesy  of  an  estate  tail 
with  the  law  of  curtesy  of  an  estate  in  fee  simple. 

In  the  section  of  Littleton,  which  we  have  already  quoted,(7)  it  is  laid  down, 
that,  if  a  man  taketh  a  wife  seised  as  heir  in  tail  especial,  and  hath  issue  by  her, 
born  alive,  he  shall,  on  her  decease,  be  tenant  by  the  curtesy.  And  on  this  Lord 
Coke  makes  the  following  commentary :  "  And  here  Littleton  intendeth  a  seisin 
in  deed,  if  it  may  be  attained  unto.  As  if  a  man  dieth  seised  of  lands  in  fee 
simple  or  fee  tail  general,  and  these  lands  descend  to  his  daughter,  and  she 

(ff)  3  &  4  Will.  IV.  c.  106.  (A)  Sect.  2. 

(i)  Appendix  (B),  ante,  p.  475.  {I)  Sect.  35. 


521  APPENDIX. 

taketh  a  husband  and  hath  issue,  and  dieih  before  any  entry,  the  husband  shall 
not  be  tenant  by  the  curtesy,  and  yet,  in  this  case,  she  had  a  seisin  in  law;  but, 
if  she  or  her  husband  had,  during  her  life,  entered,  he  should  have  been  tenant 
r*f»22"l  ky  tne  curtesy. "(m)  Now,  it  is  *well  known  that  the  descent  of  an 
estate  tail  is  always  traced  from  the  purchaser  or  original  donee  in  tail. 
The  actual  seisin  which  might  be  obtained  by  the  heir  to  an  estate  tail  never 
made  him  the  stock  of  descent.  The  maxim  was,  "  Possessio  fratris  de  feudo 
simplici  facit  sororem  esse  hacredem."  Where,  therefore,  a  woman  who  had 
been  seised  as  heir  or  coparcener  in  tail  died,  leaving  issue,  such  issue  made 
themselves  heir  not  to  her,  but  to  her  ancestor,  the  purchaser  or  donee ;  and 
whether  the  mother  did  or  did  not  obtain  actual  seisin  was,  in  this  respect, 
totally  immaterial.  When  actual  seisin  was  obtained,  the  issue  still  made  them- 
selves heir  to  the  purchaser  only,  and  yet  the  husband  was  entitled  to  his  curtesy. 
When  actual  seisin  was  not  obtained,  the  issue  were  heirs  to  the  purchaser  as 
before ;  but  the  husband  lost  his  curtesy.  In  the  case  of  an  estate  tail,  there- 
fore, it  is  quite  clear  that  the  question  of  curtesy  or  no  curtesy  depended  entirely 
on  the  husband's  obtaining  for  his  wife  an  actual  seisin,  and  had  nothing  to  do 
with  the  circumstance  of  the  wife's  being  or  not  being  the  stock  of  descent.  The 
reason,  therefore,  before  mentioned  given  by  Lord  Coke,  and  repeated  by  Black- 
stone,  cannot  apply  to  an  estate  tail.  An  actual  seisin  could  not  have  been  re- 
quired in  order  to  make  the  wife  the  stock  of  descent,  because  the  descent  could 
not,  under  any  circumstances,  be  traced  from  her,  but  must  have  been  traced 
from  the  original  donee  to  the  heir  of  his  body  per  formam  doni. 

Again,  if  we  look  to  the  law  respecting  curtesy  in  incorporeal  hereditaments, 
we  shall  find  that  the  reason  above  given  is  inapplicable;  for  the  husband,  on 
having  issue  born,  was  entitled  to  his  curtesy  out  of  an  advowson  and  a  rent, 
although  no  actual  seisin  had  been  obtained,  in  the  wife's  lifetime,  by  receipt  of 
the  rent  or  presentation  to  the  advowson. (n)  And  yet,  in  order  to  make  the 
wife  the  stock  of  descent  as  to  such  hereditaments,  it  was  necessary  that  an 
actual  seisin  should  be  obtained  by  her.(o)  The  husband,  therefore,  was 
r*K9q-i  entitled  to  his  curtesy  where  the  *descent  to  the  issue  was  traced  from 
the  ancestor  of  his  wife,  as  well  as  where  traced  from  the  wife  herself. 
In  this  case  also  the  right  of  curtesy  was,  accordingly,  independent  of  the  wife's 
being  or  not  being  the  stock  from  which  the  descent  was  to  be  traced. 

We  are  driven,  therefore,  to  search  for  another  and  more  satisfactory  reason 
why  an  actual  seisin  should  have  been  required  to  be  obtained  by  the  wife,  in 
order  to  entitle  her  husband  to  his  curtesy  out  of  her  lands;  and  such  a  reason 
is  furnished  by  Lord  Coke  himself,  and  also  by  Blackstone.  Lord  Coke  says,(p) 
"  Where  lands  or  tenements  descend  to  the  husband,  before  entry  he  hath  but  a 
seisin  in  law,  and  yet  the  wife  shall  be  endowed,  albeit  it  be  not  reduced  to  an 

(m)  Co.  Litt.  29  a.  (n)  Watk.  Descents  39  (47,  4th  ed.). 

(o)  Watk.  Descents  60  (67,  4th  ed.).  (p)  Co.  Litt.  31  a. 


APPENDIX. 


523 


actual  possession,  for  it  lieth  not  in  the  power  of  the  wife  to  bring  it  to  an 
actual  seisin,  as  the  husband  may  do  of  his  wife's  land  when  he  us  to  be  tenant 
by  curtesy,  which  is  worthy  the  observation."     It  would  seem  from  this,  there- 
fore  that  the  reason  why  an  actual  seisin  was  required  to  entitle  the  husband  to 
his  curtesy  was,  that  his  wife  may  not  suffer  by  his  neglect  to  take  possession  of 
her  lands :  and,  in  order  to  induce  him  to  do  so,  the  law  allowed  him  curtesy  of 
all  lauds  of  which  an  actual  seisin  had  been  obtained,  but  refused  him  his  curtesy 
out  of  such  lands  as  he  had  taken  no  pains  to  obtain  possession  of.     This  reason 
also  is  adopted  by  Blackstone  from  Coke :  «  A  seisin  in  law  of  the  husband  wdl 
be  as  effectual  as  a  seisin  in  deed,  in  order  to  render  the  wife  dowable ;  for  it  is 
not  in  the  wife's  power  to  bring  the  husband's  title  to  an  actual  seisin,  as  it  is  in 
the  husband's  power  to  do  with  regard  to  the  wife's  lands;  which  is  one  reason 
n-lui  he  shall  not  be  tenant  by  the  curtesy  but  of  such  land,  whereoj   the  wife, 
or  he  himself  in  her  right,  was  actually  seised  in   deed."(q)      The   more  we 
investigate  the  rules  and   principles  of  the  ancient  law,  the  greater  will   appear 
the  probability  that  this   reason  was  indeed   the   true   one.     In   the  troublous 
times  of  old,  an   actual   seisiu  was   not  always   easily  acquired.     The   doctrine 
of  continual  claim  shows  that  peril  was  not  unfrequently  incurred  in  entering 
*on  lands  for  the  sake  of  asserting  a  title ;  for,  in  order  to  obtain  an    ^52i] 
actual  seisin,  any  person  entitled,  if  unable  to  approach  the  premises, 
was  bound  to  come  as  near  as  he  dare.(r)     And  «  it  is  to  be  observed,    says 
Lord  Coke,  » that  every  doubt  or  fear  is  not  sufficient,  for  it  must  concern  the 
safety  of  the  person  of  a  man,  and  not  his  houses  or  goods;  for  if  he  fear  the 
burning  of  his  houses  or  the   taking  away  or  spoiling  his  goods,  this   is   not 
sufficient," (s)     That  actual  seisin  should  be  obtained  was  obviously  most  desir- 
able and  nothing  could  be  more  natural  or  reasonable  than  that  the  husband 
should  have  no  curtesy  where  he  had  failed  to  obtain  it.      Perkins  seems  to 
think  that  this  was  the  reason  of  the  rule;  for  in  his  Profitable  Book  he  answers 
an  objection  to  it,  founded  on  an  extreme  case.     "But  if  possession  in  law  of 
lands  or  tenements  in  fee  descend  unto  a  married  woman,  which  lands  are  in  the 
county  of  York,   and  the  husband  and  his  wife   are  dwelling  in  the  county  of 
Essex,  and  the  wife   dieth  within  one  day  after  the  descent,  so  as  the  husband 
could  not  enter  during  the  coverture,  for  the  shortness  of  the  time,  yet  he  shall 
not  be  tenant  by  the  curtesy,  &c. ;   and  yet,   according  to   common  pretence, 
there  is  no  default  in  the  husband.     But  it  may  be  said  that  the  husband  of  the 
woman   before  the  death  of  the  ancestor  of  the  woman,  might  have  spoken  unto 
a  man  dwelling  near  unto  the  place  where  the  lands  lay,  to  enter  for  the  woman, 
as  in  her  right,   immediately   after   the   death   of  her   ancestor,"  &c.(0     Ihis 
reason  for   the  rule  is   also   quite   consistent  with   the   circumstance  that  the 
husband  was  entitled  to  his  curtesy  out  of  incorporeal  hereditaments,  notwith- 
standing his  failure  to  obtain  an  actual  seisin.     For  if  the  advowson  were  not 

(q)  2  Black.  Com.  131.  M  Litt.  ss.  419,  421. 

(S)  Co.  Litt.  253  b.  («)  Perk.  470. 


524  APPENDIX. 

void,  or  the  rent  did  not  become  payable  during  the  wife's  life,  it  was  obviously 
impossible  for  the  husband  to  present  to  the  one  or  receive  the  other ;  and  it 
would  have  been  unreasonable  that  he  should  suffer  for  not  doing  an  impossi- 
bility, the  maxim  being  "  impotentia  excusat  legem."  This  is  the  reason, 
Pjjkokh  indeed,  usually  given  to  explain  this  circumstance;  and  it  *will  be 
found  both  in  Lord  Coke(w)  and  Blackstone.(£c)  This  reason,  how- 
ever, is  plainly  at  variance  with  that  mentioned  in  the  former  part  of  this  paper, 
and  adduced  by  them  to  explain  the  necessity  of  an  actual  seisin,  in  order  to 
entitle  the  husband  to  his  curtesy  out  of  lands  in  fee  simple. 

There  still  remains,  however,  the  section  of  Littleton,  to  which  we  have  before 

referred, (#)  as  an  apparent  authority  on  the  other  side.     Littleton  expressly 

says,  that  when  the  issue  may,  by  possibility,  inherit,  of  such  an  estate  as  the 

tcife  hath,  as  heir  to  the  wife,  the  husband  shall  have  his  curtesy,  but  otherwise 

not ;  and  we  have  seen  that,  according  to  Lord  Coke's  interpretation,  to  inherit 

as  heir  to  the  wife,  means  here  to  inherit  from  the  wife  as  the  stock  of  descent. 

But  the  legitimate  mode  of  interpreting  an  author  certainly  is  to  attend  to  the 

context,  and  to  notice  in  what  sense  be  himself  uses  the  phrase  in  question  on 

other  occasions.     If  now  we  turn  to  the  very  next  section  of  Littleton,  we  shall 

find  the  very  same  phrase  made  use  of  in  a  manner  which  clearly  shows  that 

Littleton  did  not  mean,  by  inheriting  as  heir  to  a  person,  inheriting  from  that 

person  as  the  stock  of  descent.     For,  after  having  thus  laid  down  the  law  as  to 

curtesy,  Littleton   continues :  "  And,  also,  in  every  case  where  a  woman  taketh 

a  husband  seised  of  such  an  estate  in  tenements,  &c,  so  as,  by  possibility,  it 

may  happen  that  the  wife  may  have  issue  by  her  husband,  and  that  the  same 

issue  may,  by  possibility,  inherit  the  same  tenements  of  such  an  estate  as  the 

husband  hath,  as  heir  to  the  husband,  of  such  tenements  she  shall  have  her 

dower,  and  otherwise  not."(z)     Now,  nothing  is  clearer  than  that  a  wife  was 

entitled  to  dower  out  of  the  lands  of  which    her   husband   had   only  seisin 

in    law;(a)    and    nothing,    also,    is    clearer    than    that    a    seisin    in    law    only 

was   insufficient   to   make   the   husband   the   stock   of  descent :   for,   for   this 

purpose,  an   actual  seisin  was  requisite,   according  to   the  rule  "  seisina  facit 

stipitem."     In    this    case,    therefore,    it   is    obvious    that    Littleton    could    not 

*mean  to  sav  that  the  husband  must  have  been   made   the   stock  of 
T  5261  ...  .  . 

L  '  .    J    descent,  by  virtue  of  having  obtained  an  actual  seisin  :  for  that  would 

have  been  to  contradict  the  plainest  rules  of  law.  What,  then,  was  his  mean- 
ing? The  subsequent  part  of  the  same  section  affords  an  explanation :  "For, 
if  tenements  be  given  to  a  man  and  to  the  heirs  which  he  shall  beget  of  the 
body  of  his  wife,  in  this  case  the  wife  hath  nothing  in  the  tenements,  and  the 
husband  hath  an  estate  tail  as  donee  in  special  tail.  Yet,  if  the  husband  die 
without  issue,  the  same  wife  shall  be  endowed  of  the  same  tenements,  because 

(u)  Co.  Litt.  29  a.  (x)  2  Black.  Com.  127. 

(y)  Sect.  52.  (z)  Litt.  s.  53. 

(a)  Watk.  Descents  32  (42,  4th  ed.). 


APPENDIX.  526 

the  issue  which  she,  hy  possibility,  might  have  had  by  the  same  husband,  might 
have  inherited  the  same  tenements.  But,  if  the  wife  dieth  leaving  her  husband, 
and  after  the  husband  taketh  another  wife  and  dieth,  his  second  wife  shall  not 
be  endowed  in  this  case,  for  the  reason  aforesaid"  This  example  shows  what 
was  Littleton's  true  meaning.  He  was  not  thinking,  either  in  this  section  or  the 
one  next  before  it,  of  the  husband  or  wife  being  the  stock  of  descent,  instead  of 
some  earlier  ancestor.  He  was  laying  down  a  general  rule,  applicable  to  dower 
as  well  as  to  curtesy  :  namely,  that  if  the  issue  that  might  have  been  born  in  the 
one  case,  or  that  were  born  in  the  other,  of  the  surviving  parent,  could  not  by 
possibility  inherit  the  estate  of  their  deceased  parent,  by  right  of  representation 
of  such  parent,  then  the  surviving  parent  was  not  entitled  to  dower  in  the  one 
case,  or  to  curtesy  in  the  other.  It  is  plain  that,  in  the  example  just  adduced, 
the  issue  of  the  husband  by  his  second  marriage  could  not  possibly  inherit  his 
estate,  which  was  given  to  him  and  the  heirs  of  his  body  by  his  first  wife ;  the 
second  wife,  therefore,  was  excluded  from  dower  out  of  this  estate.  And,  in  the 
parallel  case  of  a  gift  to  a  woman  and  the  heirs  of  her  body  by  her  first  hus- 
band, it  is  indisputable  that,  for  a  precisely  similar  reason,  her  second  husband 
could  not  claim  his  curtesy  on  having  issue  by  her  ;  for  such  issue  could  not 
possibly  inherit  their  mother's  estate.  All  that  Littleton  then  intended  to  state 
with  respect  to  curtesy  was  the  rule  laid  down  by  the  Statute  de  Donis,(6)  which 
*provides  that,  where  any  person  gives  lands  to  a  man  and  his  wife  r*^! 
and  the  heirs  of  their  bodies,  or  where  any  person  gives  land  in  frank- 
marriage,  the  second  husband  of  any  such  woman  shall  not  have  any  thing  in 
the  land  so  given,  after  the  death  of  his  wife,  by  the  law  of  England,  nor  shall 
the  issue  of  the  second  husband  and  wife  succeed  in  the  inheritance. (c)  When 
the  two  sections  of  Littleton  are  read  consecutively,  without  the  introduction  of 
Lord  Coke's  commentary,  their  meaning  is  apparent ;  and  the  intervening  com- 
mentary not  only  puts  the  reader  on  the  wrong  clue,  but  hinders  the  recovery  of 
the  right  one,  by  removing  to  a  distance  the  explanatory  context. 

If  our  construction  of  Littleton  be  the  true  one,  it  throws  some  light  on  the 
question  discussed  in  Appendix  (B),  on  the  course  of  descent  amongst  coparce- 
ners. We  there  endeavored  to  show  that  the  issue  of  a  coparcener  always  stood 
in  the  place  of  their  parent,  by  right  of  representation,  even  where  descent  was 
traced  from  some  more  remote  ancestor  as  the  stock.  Littleton,  with  this  view 
of  the  subject  in  his  mind,  and  never  suspecting  that  any  other  could  be  enter- 
tained, might  well  speak  generally  of  issue  inheriting  as  heir  to  their  parent, 
even  though  the  share  of  the  parent  might  have  descended  to  the  issue  as  heir 
to  some  more  remote  ancestor.  The  authorities  adduced  in  Appendix  (B)  thus 
tend  further  to  explain  the  language  of  Littleton ;  whilst  the  language  of  Lit- 
tleton, as  above  explained,  illustrates  and  confirms  the  authorities  previously 
adduced- 

(6)  13  Edw.  I.  c.  1.  (c)  See  Bac.  Abr.  tit.  Curtesy  of  England  (C),  1. 


527  APPENDIX. 

Having  at  length  arrived  at  the  true  principles  of  the  old  law,  the  application 
of  them  to  the  state  of  circumstances  produced  by  the  new  law  of  inheritance 
will  be  very  easy.  A  coparcener  dies  leaving  a  husband  who  has  had  issue  by 
her,  and  leaving  one  or  more  sisters  surviving  her.  The  descent  of  her  share  is 
now  traced  from  their  common  parent,  the  purchaser.  But,  in  tracing  this 
descent,  we  have  seen,  in  Appendix  (B),  that  the  issue  of  the  deceased  copar- 
rjj.f.pn-i  cener  *would  inherit  her  entire  share  by  representation  of  her.  And 
the  condition  which  will  entitle  her  husband  to  curtesy  out  of  her  share 
appears  to  be,  that  his  issue  might  possibly  inherit  the  estate  by  right  of  repre- 
sentation of  their  deceased  mother.  This  condition,  therefore,  is  obviously  ful- 
filled, and  our  conclusion  subsequently  is,  that  the  husband  of  a  deceased  coparce- 
ner, who  has  had  issue  by  her,  is  entitled  to  curtesy  out  of  the  whole  of  her 
share.  But  in  order  to  arrive  at  this  conclusion,  it  seems  that  we  must  admit, 
first,  that  Lord  Coke  has  endeavored  to  support  the  law  by  one  reason  too  many ; 
and,  secondly,  that  one  laudatory  flourish  of  Blackstone  has  been  made  without 
occasion. 


[*529]  * APPENDIX  F. 

Referred  to,  p.  275. 

If  the  rule  of  perpetuity,  which  restrains  executory  interests  within  a  life  or 
lives  in  being  and  twenty-one  years  afterwards,  be,  as  is  sometimes  contended, (a) 
the  only  limit  to  the  settlement  of  real  estate  by  way  of  remainder,  the  follow- 
ing limitations  would  be  clearly  unobjectionable : — To  the  use  of  A.,  a  living 
unmarried  person,  for  life,  with  remainder  to  the  use  of  his  first  son  for  life, 
with  remainder  to  the  use  of  the  first  son  of  such  first  son,  born  in  the  lifetime 
of  A.,  or  within  twenty-one  years  after  his  decease,  for  life,  with  remainder  to 
the  use  of  the  first  and  other  sons  of  such  first  son  of  such  first  son  of  A.,  born 
in  the  lifetime  of  A.,  or  within  twenty-one  years  after  his  decease,  successively 
in  tail  male,  with  remainder  to  the  use  of  the  first  son  of  the  first  son  of  A., 
born  in  his  lifetime,  or  within  twenty-one  years  after  his  decease,  in  tail  male, 
with  remainder  to  the  use  of  the  second  son  of  such  first  son  of  A.,  born  in  the 
lifetime  of  A.,  or  within  twenty-one  years  after  his  decease,  for  life,  with  re- 
mainder to  the  use  of  his  first  and  other  sons,  born  in  the  lifetime  of  A.,  or 
within  twenty-one  years  after  his  decease,  successively  in  tail  male,  with  remain- 
der to  the  use  of  the  second  son  of  the  first  son  of  A.,  born  in  his  lifetime,  or 
within  twenty-one  years  after  his  decease,  in  tail  male,  with  remainder  to  the 
use  of  the  third  son  of  such  first  son  of  A.,  born  in  the  lifetime  of  A.,  or  within 
twenty-one  years  after  his  decease,  for  life,  with  remainder  to  the  use  of  his  first 
and  other  sons,  born  as  before,  successively  in  tail  male,  with  remainder  to  the 
use  of  such  third  son  of  the  first  son  of  A.,  born  as  before,  in  tail  male,  with 
like  remainders  to  the  use  of  the  fourth  and  every  other  son  of  such  first  son 

(«)  Lewis  on  Perpetuity,  p.  408  et  seq. 


APPENDIX.  529 

of  A.,  born  as  before,  for  *life  respectively,  followed  by  like  remainders  r^.r 
to  the  use  of  their  respective  first  and  other  sons,  born  as  before,  sue- 
cessively  in  tail  male,  followed  by  like  remainders  to  the  use  of  themselves  in 
tail  male  ;  with  remainder  to  the  use  of  the  first  son  of  A.  in  tail  male,  with 
remainder  to  the  use  of  the  second  son  of  A.  for  life;  with  similar  remainders  to 
the  use  of  his  sons,  and  sons'  sons,  born  as  before ;  with  remainder  to  the  use  of 
such  second  son  of  A.  in  tail  male,  and  so  on. 

It  is  evident  that  every 'one  of  the  estates  here  limited  must  necessarily  arise 
within  a  life  in  being  (namely,  that  of  A.)  and  twenty-one  years  afterwards. 
And  yet  here  is  a  settlement  which  will  in  all  probability  tie  up  the  estate  for 
three  generations;  for  the  eldest  son  of  a  man's  eldest  son  is  very  frequently 
born  in  his  lifetime,  or,  if  not,  will  most  probably  be  born  within  twenty-one 
years  after  his  decease.  And  great-grandchildren,  though  not  often  born  in  the 
lifetime  of  their  great-grandfather,  are  yet  not  unusually  born  within  twenty- 
one  years  of  his  death.  Now  if  a  settlement  such  as  this  were  legal,  it  would, 
we  may  fairly  presume,  have  been  adopted  before  now ;  for  conveyancers  are 
frequently  instructed  to  draw  settlements  containing  as  strict  an  entail  as  possi- 
ble; and  the  Court  of  Chancery  has  also  sometimes  had  occasiou  to  carry  into 
effects  executory  trusts  for  making  strict  settlements.  In  these  cases  it  would  be 
the  duty  of  the  draftsman,  or  of  the  court,  to  go  to  the  limit  of  the  law  in 
fettering  the  property  in  question.  But  it  may  be  safely  asserted  that  in  no 
single  case  has  a  settlement,  such  as  the  one  suggested,  been  drawn  by  any  con- 
veyancer, much  less  sanctioned  by  the  Court  of  Chancery,  or  now  by  the  Chan- 
cery Division  of  the  High  Court.  The  utmost  that  on  these  occasions  is  ever 
done  is,  to  give  life  estates  to  all  living  persons,  with  remainder  to  their  first  and 
other  sons  successively  in  tail  male.  As,  therefore,  the  best  evidence  of  a  man's 
having  had  no  lawful  issue  is  that  none  of  his  family  ever  heard  of  any,  so  the 
best  evidence  that  such  a  settlement  is  illegal  is  that  no  conveyancer  ever  heard 
of  such  a  draft  being  drawn. 


♦APPENDIX  G.  [*531] 

Referred  to,  pp.  374,  37G. 


The  Manor  oP 
Fairfield  in 

the  County  of 
Middlesex. 


A  General  Court  Baron  of  John  Freeman  Esq.  Lord  of  the 
said  Manor  holden  in  and  for  the  said  Manor  on  the  1st  day 
of  January  in  the  third  year  of  the  reign  of  our  Sovereign 
Lady  Queen  Victoria  by  the  Grace  of  God  of  the  United 
Kingdom  of  Great  Britain  and  Ireland  Queen  Defender  of  the  Faith  and 
in  the  year  of  our  Lord  1810  Before  John  Doe  Steward  of  the  said  Manor. 


At  this  Court  comes  A.  B.  one  of  the  customary  tenants  of  this  manor  and  in  con- 
sideration of  the  sum  of  £1000  of  lawful  money  of  Great  Britain  to  him  in  hand 


531  APPENDIX. 

well  and  truly  paid  by  C.  D.  of  Lincoln's  Inn  in  the  county  of  Middlesex  Esq. 
in  open  court  surrenders  into  the  hands  of  the  lord  of  this  manor  by  the  hands 
and  acceptance  of  the  said  steward  by  the  rod  according  to  the  custom  of  this 
manor  All  that  messuage  &c.  [here  describe  the  premises]  with  their  appur- 
tenances (and  to  which  same  premises  the  said  A.  B.  was  admitted  at  the  general 
Court  holden  for  this  manor  on  this  12th  day  of  October  1838)  And  the  rever- 
sion and  reversions  remainder  and  remainders  rents  issues  and  profits  thereof 
And  all  the  estate  right  title  interest  trust  benefit  property  claim  and  demand 
whatsoever  of  the  said  A.  B.  in  to  or  out  of  the  same  premises  and  every  part 
thereof  To  the  use  of  the  said  C.  L\  his  heirs  and  assigns  for  ever  according  to 
the  custom  of  this  manor. 

Now  at  this  Court  comes  the  said  C.  D.  and  prays  to  be  admitted  to  all  and 
singular  the  said  customary  or  copyhold  hereditaments  and  premises  so  surren- 
dered to  his  use  at  this  Court  as  aforesaid  to  whom  the  lord  of  this  manor 
^-n^-,  *bv  the  said  steward  grants  seisin  thereof  by  the  rod  To  have  and  To 
L  hold  the  said  messuage  hereditaments  and  premises  with  their  appur- 

tenances.unto  the  said  C  D.  and  his  heirs  to  be  holden  of  the  lord  by  copy  of 
court  roll  at  the  will  of  the  lord  according  to  the  custom  of  this  manor  by  fealty 
suit  of  court  and  the  ancient  annual  rent  or  rents  and  other  duties  and  services 
therefore  due  and  of  right  accustomed  And  so  (saving  the  right  of  the  lord)  the 
said  C.  D.  is  admitted  tenant  thereof  and  pays  to  the  lord  on  such  his  admittance 
a  fine  certain  of  £50  and  his  fealty  is  respited. 

(Signed)  John  Doe  Steward. 


INDEX. 


ABANDONMENT,  evidence  of,  460. 

ABEYANCE,  inheritance  in,  266. 

ABSTRACT  of  title,  vendor  bound  to  furnish  an,  448. 

now  forty  years  sufficient,  449. 
ACCOUNT  current,  stamps  on  mortgages  to  secure,  440,  n. 
ACCUMULATION,  restriction  on,  320. 

ACKNOWLEDGMENT  of  deeds  by  married  women,  231,  465. 
ACTIONS,  real  and  personal,  7. 
ADMINISTRATOR,  10,  338. 

of  bare  trustee,  116,  166. 
of  mortgagee,  431. 
ADMITTANCE  to  copyholds,  351,  357,  375,  376,  378,  531. 
ADVOWSON  appendant,  326. 

agreements  for  resignation,  341. 
conveyance  of,  343. 
in  gross,  326,  340,  343. 
of  rectories,  342. 
of  vicarages,  343. 

proper  length  of  title  to,  448,  449,  450. 
limitation  of  actions  and  suits  for,  456. 
AGREEMENTS,  what  required  to  be  in  writing,  166,  167. 
stamps  on,  167,  n. 
for  lease,  393. 

stamps  on,  394,  n. 
AGRICULTURAL  Holdings  (England)  Act,  1875  .  .  389,  390,  391,  410,  411. 
AIDS,  120,  122. 
ALIEN,  64,  165. 

ALIENATION  of  real  estate,  17,  18,  38,  39,  41,  42,  44,  60,  62,  64,  65,  66,  67,  68,  75,  76, 
77,  79,  93,  94,  250. 
power  of,  unconnected  with  ownership,  300. 
of  executory  interest,  316. 
of  copyholds,  362,  372,  374,  376,  377,  531. 
AMBASSADORS,  children  of,  65. 
ANCESTOR,  descent  to,  105,  113,  114. 

formerly  excluded  from  descent,  106. 
ANCIENT  demesne,  tenure  of,  130,  355. 

incidents  of  tenure  in  fee,  118. 
ANNUITIES  for  lives,  enrolment  of  memorial  of,  now  unnecessary,  331. 
registration  of,  331. 
search  for,  465. 
ANTICIPATION,  clause  against,  225. 


534  INDEX. 

APPENDANT  incorporeal  hereditaments,  322,  324,  326,  458. 

common  appendant,  119,  n,  459,  500. 
APPLICATION  of  purchase-money,  necessity  of  seeing  to  the,  452. 
APPOINTMENT,  powers  of,  202,  296,  301.— See  Powers. 
APPORTIONMENT  of  rent,  28,  399,  400. 
of  rent-charge,  337. 
by  Inclosure  Commissioners,  337. 
APPURTENANCES,  328. 
APPURTENANT  incorporeal  hereditaments,  328,  329,  458,  459. 

rights  of  common  and  of  way,  328,  459. 
ARMS,  grant  of,  144,  n. 

directions  for  use  of,  292. 
ARTS,  conveyance  for  promotion  of,  75. 
ASSART,  503. 
ASSETS,  80. 

equitable,  81. 
ASSIGNEE  of  lease  liable  to  rent  and  covenants,  396,  397. 
ASSIGNMENT  of  satisfied  terms,  416-420. 
of  lease,  402. 

of  chattel  interest  must  be  by  deed,  402. 
ASSIGNS,  64,  145. 

ASSURANCE,  further,  in  deed  of  grant,  516. 
ATTAINDER  of  tenant  in  tail,  57. 

of  tenant  in  fee,  68,  126. 
abolition  of,  23,  57,  68,  166. 
ATTENDANT  terms,  416-420. 
ATTESTATION  to  deeds,  190,  297. 

to  wills,  204,  206,  299,  377. 
to  deeds  exercising  powers,  297,  298. 
ATTESTED  copies,  463. 

ATTORNEYS'  and  Solicitors'  Act,  1870,  200. 
ATTORNMENT,  247,  323. 

now  abolished,  248,  324. 
AUCTION,  sale  of  land  by,  168. 

opening  of  biddings  abolished,  168. 
AUTRE  droit,  estates  in,  415. 
AUTRE  vie,  estate  pur,  20,  22. 

quasi  entail  of,  59. 

in  a  rent-charge,  334,  335. 

in  copyholds,  358. 


B. 

BANKRUPTCY,  93,  365,  405. 

of  tenant  in  tail,  58. 

of  cestui  que  trust,  171. 

of  tenant  in  fee  simple,  93. 

of  trustee,  171. 

search  for,  465. 

exercise  of  powers  in,  295. 

of  owner  of  land  subject  to  rent-charge,  337,  338. 


INDEX.  535 


BANKRUPTCY,  power  of  trustee  in,  as  to  copyholds,  365. 

as  to  leaseholds  in,  405. 
BARE  trustee,  116,  166,  172,  232,  376. 
BARGAIN  and  sale,  183,  184,  201,  202,  395,  445. 

required  to  be  enrolled,  185,  201. 
for  a  year.  185,  187. 
of  lands  in  Yorkshire,  201,  445. 
BASE  fee,  53. 
BASTARDY,  126. 
BEDFORD  Level  registry,  195. 
BENEFICE  with  cure  of  souls,  95. 
BIDDINGS,  opening  of,  abolished,  168. 
BOROUGH  English,  tenure  of,  130. 
BREACH  of  covenant,  waiver  of,  400. 

actual  waiver  of,  400. 
implied  waiver,  400. 
BURIAL  grounds,  vesting  of  property  in,  173. 
sites  for,  75. 

C. 

CALVIN'S  case,  65. 
CANAL  shares,  personal  property,  8. 
CESSER  of  a  term,  proviso  for,  412. 
CESTUI  que  trust,  161,  171,  285. 

is  tenant  at  will,  389. 
que  vie,  20,  21. 
CHAMBERS,  14. 

CHANCERY  Amendment  Act,  1858,  176. 
ancient,  155,  162. 
modern,  162. 

interposition  of,  between  mortgagor  and  mortgagee,  426. 
CHANCERY  Division,  matters  assigned  to,  104,  162,  178,  426. 
CHARITIES,  Incorporated,  77. 
CHARITY,  conveyance  to,  68,  69,  70,  71. 

inrolment  of,  70,  71,  72,  73,  n.  (o),  76. 

new  trustees  of,  173. 

commissioners,  74. 

official  trustee,  74. 

investment  of  funds,  77. 
CHATTELS,  5,  7,  7,  n. 
CHELTENHAM,  manor  of,  385. 
CODICIL,  209. 
COLLATION,  341. 

COMMISSIONERS  of  Inclosures,  138,  325,  337. 
COMMON  forms,  199. 

COMMON  Law  Procedure  Act,  1854,  175,  202. 
COMMON,  rights  of,  119,  n.,  324-326,  328,  459,  489. 

of  copyholds,  370. 

appendant,  459,  489,  494,  498. 

commonable  beasts,  498. 
30 


536  INDEX. 

COMMON,  no  common  for  a  house,  499. 

ancient  meadow,  499. 
appendant  need  not  be  prescribed  for,  500. 

shall  be  apportioned,  501. 
appurtenant  is  against  common  right,  502. 
writ  of  novel  disseisin,  507. 
the  remedy  ascertained  the  right,  507. 
extinguishment  of  rights,  460,  509. 
fields,  326.  502. 
metropolitan  commons,  325. 
suburban  commons,  325. 
in  gross,  340,  458. 
limitation  of  rights  of,  459,  510. 
tenants  in,  136. 
COMMUTATION  of  tithes,  347. 

of  manorial  rights,  368. 
COMPANIES,  joint  stock,  78. 
COMPENSATION  for  improvements,  389,  410. 
CONCEALED  fraud,  limitation  in  cases  of,  455. 
CONDITION  of  re-entry  for  non-payment  of  rent,  245. 
demand  of  rent  formerly  required,  245. 
modern  proceedings,  245. 
formerly  inalienable,  246. 
for  breach  of  covenants,  397,  398. 
effect  of  license  for  breach  of  covenant,  398,  399. 
effect  of  waiver,  400. 
CONDITIONAL  gift,  36,  43,  94. 
CONSENT  of  protector,  52,  53. 

as  to  copyholds,  363,  380. 
CONSIDERATION  on  feoffment.  146,  156,  158,  162. 

a  deed  imports  a,  148. 
CONSOLIDATION  of  securities,  441. 
CONSTRUCTION  of  wills,  19,  20,  212,  213,  218. 

of  law  as  to  attendant  terms,  419. 
of  words,  15,  19. 
CONTINGENT  remainders,  262,  266. 

anciently  illegal,  263. 
Mr.  Fearne's  Treatise  on,  267. 
definition  of,  267. 
example  of,  267,  271,  277,  315. 
rules  for  creation  of,  269,  274. 
vesting  of,  270,  272. 
CONTINGENT  Remainders  Act,  1877.     See  statute  40  &  41  Vict.  c.  33. 
remainders,  formerly  inalienable,  277,  278. 
destruction  of,  279. 
now  indestructible,  279,  284,  285. 
trustees  to  preserve,  283,  284. 
of  trust  estates,  285. 

difference  between  executory  devises  and,  315. 
of  copyholds,  382. 
CONTINUING  breach  of  covenant,  400. 


index.  537 


( !( >NTRACT  cannot  bar  estate  tail,  55. 
special,  80. 

where  time  not  of  essence,  168. 
CONVEYANCE,  fraudulent,  78. 

of  advowson,  343. 
of  tithes,  346. 
by  tenant  for  life,  32. 
voluntary,  78. 

by  deed,  148,  149,  186,  239,  243. 
by  married  women,  231. 
to  uses,  188,  189. 
COPARCENERS,  103. 

descent  amongst,  112,  475. 
COPYHOLD  Acts,  1852  and  1858,  369. 
COPYHOLDS,  definition  of,  349. 
origin  of,  349. 
for  lives,  350,  358. 
of  inheritance,  351. 
history  of,  351. 
estates  in  copyholds,  353. 
estate  tail  in,  361,  362. 
exchange  of  freehold  for  copyhold,  325,  n. 
estate  pur  autre  vie,  358. 
customary  recovery.  362. 
forfeiture  and  re-grant,  362. 
equitable  estate  tail  in,  380,  381. 
ancient  state  of  copyholders,  349,  360. 
alienation  of,  362,  372,  374-377,  531. 
subject  to  debts,  364. 

power  of  trustee  in  bankruptcy  as  to,  365. 
trustee  in  bankruptcy  need  not  be  admitted,  365. 
descent  of,  365,  469. 
tenure  of,  366. 

commutation  of  manorial  rights  in,  368. 
enfranchisement  of,  369. 
mortgage  of,  430. 
grant  of,  374. 
seizure  of,  378. 
surrender  of,  374,  531. 

admittance  to,  351,  357,  375,  376,  378,  531. 
contingent  remainders  of,  382. 
deposit  of  copies  of  court  roll,  433. 
abstract  of  title  on  purchase  of,  448. 
CORPORATION,  conveyance  to,  76,  77. 
CORPOREAL  hereditaments,  10,  13,  339. 

now  lie  in  grant,  239. 
COSTS,  mortgage  to  secure,  441. 
COUNTER-CLAIMS,  177. 
COUNTERPART,  stamp  on,  150. 
COUNTIES  palatine,  90,  91,  174,  n. 
COUNTY   Courts,  equity  jurisdiction  of,  163,  173,  428. 


538  INDEX. 

COUNTY  Courts,  agreements  for  sale  or  lease,  169. 
COURT  of  Judicature. — See  Supreme  Court  of  Judicature  Acts. 
COURT  of  Probate,  207. 
COURT,  suit  of,  121,  122,  125,  127. 
customary,  350,  372,  373. 
rolls,  349,  373,  516. 
COVENANT  to  stand  seised,  202. 
COVENANTS  in  a  lease,  396. 

run  with  the  land,  397. 
effect  of  license  for  breach  of,  398,  399. 
waiver  of  breach  of,  400. 

for  quiet  enjoyment,  implied  by  certain  words,  445. 
for  title,  446,  447,  443,  515. 
to  produce  title  deeds,  463,  464. 
COVERTURE,  223,  454. 
CREDITORS,  conveyances  to  defraud,  78. 

judgment,  84. — See  Judgment  Debts. 
may  witness  a  will,  207. 
sale  of  copyhold  estates  for  benefit  of,  364. 
CROWN  debts,  58,  91,  171,  864.— See  Debts. 
registration  of,  92. 
search  for,  93,  465. 
forfeiture  to  the,  57,  67,  126,  165,  166. 
limitation  of  rights  of,  453. 
CURTESY,  tenant  by,  227,  228,  228,  n.,  229,  n. 
of  gavelkind  lands,  129,  n.,  228. 
as  affected  by  the  new  law  of  iuheritance,  229,  518. 
of  copyholds,  370,  384. 
CUSTOMARY  freeholds,  355,  356,  357. 

recovery,  362. 
CUSTOMS,  349,  509,  510. 
CY  pres,  doctrine  of,  276. 

D. 

DAUGHTERS,  descent  to,  102,  112,  475. 
DEATH,  civil,  23. 

gift  by  will  in  case  of,  without  issue,  214. 
DEBTS,  crown,  58,  91,  171,  364,  465. 

where  trustees  and  executors  may  sell  or  mortgage  to  pay,  219,  220. 

devisee  in  fee  or  in  tail  charged  with,  221. 

of  deceased  traders,  81. 

judgment,  58,  82,  84,  86,  88,  89,  170,  364,  404. 

liability  of  lands  to,  79,  80,  317. 
of  leaseholds  to,  404. 

simple  contract,  81. 

charge  of  by  will,  81,  82,  219,  221. 

creditors  who  now  stand  in  equal  degree,  82,  83. 

copyholds  now  liable  to,  364. 

liability  of  trust  estates  to,  169. 
DECLARATION  of  title,  act  for,  466. 


INDEX. 

DEED,   147. 

of  grant,  181,  201,  512. 

alteration,  rasure  or  addition  in,  148,  149,  n. 
whether  signing  necessary  to,  152. 
poll,  150,  151. 

required  to  transfer  incorporeal  hereditaments,  239. 
on  grant  of  rent-charge,  330. 
of  grant,  conveyance  of  reversion  by,  243. 
DEEDS,  stamps  on,  149. 

similarity  of,  197. 
grant  of,  514.— See  Title  Deeds. 
DEMAND  for  rent,  245. 
DEMANDANT,  47. 
DEMESNE,  the  lord's,  119,  350. 

DEMISE,  implies  a  covenant  for  quiet  enjoyment,  445. 
DENIZEN,  65. 
DESCENT,  10. 

of  an  estate  in  fee  simple,  100-116,  469,  475. 
of  an  estate  tail,  58. 
gradual  progress  of  the  law  of,  97. 
of  gavelkind  lands,  129. 
of  borough  English  lands,  130. 
of  an  equitable  estate,  166. 
of  tithes,  346. 

of  incorporeal  hereditaments,  339. 
of  copyholds,  365,  469. 
DESTRUCTION  of  entails,  44. 
DEVISE.— See  Will. 

DISABILITIES,  time  allowed  for,  454,  457,  460. 
DISCLAIMER,  97,  217,  405. 
DISTRESS,  244,  497. 

clause  of,  333. 

for  rent  reserved  by  underlease,  406. 
DOCKETS,  85. 
DOMINANT  tenement,  459. 
DONATIVE  advowsons,  341. 
DONEE  in  tail,  36. 
DOUBTS,  legal,  153. 
DOWER,  232,  233. 

action  for,  238. 

recovery  of  widow's  dower  by  bill  in  equity,  238. 

of  gavelkind  lands,  234. 

under  old  law  independent  of  husband's  debts,  233. 

old  method  of  barring,  234. 

under  the  Dower  Act,  236,  236,  n. 

declaration  against,  237. 

modern  method  of  barring,  303. 

uses  to  bar,  304,  514. 

of  copyholds,  370,  385. 

formerly  defeated  by  assignment  of  attendant  term,  418. 

release  of,  by  acknowledgment  of  purchase  deed,  452. 


539 


540  INDEX. 

DOWER,  leases  by  tenant  in,  237. 
DRAINING,  30,  31,  325. 
DUPLICATE  deed,  stamp  on,  150. 

E. 

EASEMENTS,  limitations  of  right  to,  459. 
EDUCATIONAL  association,  conveyance  to,  75. 

incorporation  of  trustees,  77,  78. 
new  trustees,  173. 
EJECTMENT  of  mortgagor  by  mortgagee,  425. 
ELEGIT,  writ  of,  84,' 85,  364. 
EMBLEMENTS,  27,  389. 
ENCLOSURE.— See  Inclosure. 
ENDOWED  schools,  74. 
ENFRANCHISEMENT  of  copyholds,  369. 
ENROLMENT.— See  Inrolment. 
ENTAIL.— See  Tail. 

ENTIRETIES,  husband  and  wife  take  by,  226. 
ENTIRETY,  104. 
ENTRY,  necessary  to  a  lease,  181,  395. 

tenant's  position  altered  by,  181. 

right  of,  supported  a  contingent  remainder,  280. 

on  court  roll  of  deed,  barring  estate  tail,  must  be  made  within  six  months, 

380,  n. 
power  of,  to  secure  a  rent-charge,  333. 
EQUITABLE  assets,  81. 

estate,  161-165,  285,  333,  436. 
no  escheat  of,  165. 
forfeiture  of,  166. 
creation  and  transfer  of,  166,  167. 
descent  of,  166. 
liable  to  debts,  169. 
tail  in  lands  to  be  purchased,  164. 
tail  in  copyhold  may  be  barred  by  deed,  374. 
in  mortgaged  lands,  436. 
surrender  of,  381. 
of  alien,  165. 
curtesy  of,  228. 
relief,  176,  177. 
waste,  25. 
EQUITIES,  incidental,  177. 
EQUITY,  rule  of,  now  to  prevail,  160. 
follows  the  law,  163. 
a  distinct  system,  175. 
of  redemption,  426. 

is  an  equitable  estate,  161,  436. 
mortgage  of,  439. 
ERASURE,  148,  149,  n. 
ESCHEAT,  125,  126,  126,  n.,  127,  127,  n. 
none  of  trust  estates,  165. 


INDEX.  541 

ESCHEAT,  none  of  rent-charge,  340. 

of  copyhold,  366. 
ESCROW,  148. 
ESCUAGE,  122. 

ESTATE  during  widowhood,  22. 
legal,  161. 

pur  autre  vie,  20,  22,  334,  335,  358. 
in  autre  droit,  415. 

leases  and  sales  of  settled,  25,  26,  32,  54. 
grant  of,  37,  514. 

tail,  35,  36,  43,  52,  54,  105,  144,  163,  211,  213,  216,  258,  479. 
for  life,  16,  17,  19,  22,  23,  144,  163,  213,  334. 
for  life  in  copyholds,  358. 
in  fee  simple,  144,  335. 
in  fee  simple  in  copyholds,  363,  365. 
ancient  incidents  of  tenure,  118,  489. 
no  escheat  of  trust,  165. 
forfeiture  of  trust,  166. 

of  life,  146,  280. 
creation  and  transfer  of  trust,  166. 
must  be  marked  out,  188. 
of  wife,  225. 
particular,  241. 

one  person  may  have  more  than  one,  253. 
words  of  limitation,  255. 
in  remainder,  256,  258. 
where  the  first  estate  is  an  estate  tail,  259. 
in  copyhold,  353,  357,  363. 
sale  of,  by  trustee  in  bankruptcy,  365. 
at  will,  353. 

equitable,  161-165,  285,'  333,  436.— See  Equitable  Estate. 
ESTOPPEL,  lease  by,  395. 
EXCHANGE,  implied  effect  of  the  word,  445. 
power  of,  307,  308. 
of  freehold  for  copyhold,  325,  n. 
statutory  provision  for,  325,  n. 
EXECUTION  of  a  deed,  148,  297,  298. 
EXECUTORS,  directions  to,  to  sell  land,  312,  313. 

devise  of  real  estate  independent  of  assent  of,  219. 
where  they  may  sell  or  mortgage  to  pay  debts,  220. 
exoneration  of,  from  liability  to  pay  rent-charges,  338. 
exoneration  of,  from  rents  and  covenants  in  leases,  404. 
of  mortgagee  may  convey  legal  estates,  431. 
EXECUTORY  devises. — See  Executory  Interest. 

devise,  difference  between  contingent  remainder  and,  315. 
validity  of  a  limitation  as  an,  319. 
EXECUTORY  interest,  263,  275,  289,  314,  317,  529. 

creation  of,  under  Statute  of  Uses,  290. 

by  will,  312. 
alienation  of,  316. 
limit  to  creation  of,  318. 


542  INDEX. 

EXECUTORY  interest  in  copyholds,  383. 

where  preceded  by  estate  tail,  319. 
EXPRESS  trust,  limitation  in  cases  of,  -454,  4b5,  458. 

F. 

FATHER,  descent  to,  107,  113. 

his  power  to  appoint  a  guardian,  123. 
FEALTY,  121,  122,  125,  127,  243,  366. 
FEE,  meaning  of  term,  43. 

simple,  60,  63,  117,  118,  144. 

alienation,  by  tenant  in  fee. — See  Alienation. 
joint  tenants  in,  133. 
equitable  estate  in,  164. 
gift  of,  by  will,  213,  216. 
estate  of,  in  a  rent-charge,  335. 
customary  estate  in,  355,  363. 
FEE  tail,  43,  144.— See  Tail. 
FEME  Covert. — See  Married  Woman  ;  Wife. 
FEOFFMENT,  39,  n.,  140,  153,  158,  242. 
to  the  use  of  feoffor,  156. 
forfeiture  by,  146. 
deed  required  for,  152. 
by  idiots  and  lunatics,  146. 
by  infants  of  gavelkind  lands,  146. 
by  tenant  for  life,  146. 
writing  formerly  unnecessary  to  a,  147. 
FEUDAL  system,  introduction  of,  3. 
abolition  of,  6,  63. 
feuds  originally  for  life,  17,  254. 
tenancies  become  hereditary,  36,  254. 
FEUDUM  novum  ut  antiquum,  106. 
FIELDS,  common,  326,  502. 
FINE,  48,  50,  233,  532. 

formerly  used  to  convey  wife's  lands,  230. 
attornment  could  be  compelled  on  conveyance  by,  247. 
payable  to  lord  of  copyholds,  357,  532. 
FINES,  search  for,  464. 
FIRE,  relief  against  forfeiture  for  non-insurance,  401. 

protection  of  purchasers  of  leaseholds  as  to  insurance,  402. 
power  to  insure  against,  in  mortgages,  402,  429. 
FIXTURES  on  agricultural  and  pastoral  holdings,  411. 
FORECLOSURE,  427. 

court  may  direct  sale  of  property  instead  of,  428. 
assigned  to  Chancery  Division,  426. 
FORESHORE,  327,  328. 
FORFEITURE  by  feoffment,  146. 

and  re-grant  of  copyholds,  362. 

for  treason,  57,  68,  126,  126,  n.,  166,  366. 

abolition  of,  23,  57,  68,  126,  166,  366. 
FORMEDON,  45. 


INDEX.  543 

FRANKALMOIGN,  39,  131. 

FRANKM ARRIAGE,  38. 

FRAUD,  concealed,  limitation  in  cases  of,  455. 

FRAUDS,  Statute  of  (see  also  Statute  29  Car.  II.  c.  3),  20,  151,  166,  167,  L69,  IT".  204, 

244,  391,  392,  402,  433. 
FREEBENCH,  370,  385. 
FREEHOLD,  22,  36,  60,  63. 

customary  freeholds,  355,  356. 

exchange  of  freehold  for  copyhold,  325,  n. 

any  estate  of,  is  larger  than  estate  for  term  of  years,  413. 
FREEMEN,  497. 


G. 

GAIN,  496. 

GARDENS  for  the  poor,  326. 

GAVELKIND,  128,  146. 

curtesy  of  gavelkind  lands,  129,  n.,  228. 
dower  of  gavelkind  lands,  234. 
GENERAL  occupant,  20. 

residuary  devisee,  210. 
registry,  461,  467. 
words,  191,  513. 
GESTATION,  period  of,  included  in  time  allowed  by  rule  of  perpetuity,  315 
GIFT,  conditional,  37,  43,  94. 
in  tail,  117,  216. 
in  fee,  117,  216. 
to  use  of  feoffee,  146. 
with  livery  of  seisin,  143,  155. 
to  husband  and  wife  and  a  third  person,  226. 
their  heirs,  226. 
GIVE,  word  used  in  a  feoffment,  143. 

warranty  formerly  implied  by,  443,  445. 
GLAMORGAN,  county  of,  508. 
GOODS,  5,  7,  n. 
GRAND  serjeanty,  128. 

GRANT,  deed  of,  181,  200,  242,  243,  357,  n.,  512. 
an  innocent  conveyance,  201. 
construed  most  strongly  against  grantor,  18. 
incorporeal  hereditaments  lay  in,  239,  322,  328. 
proper  operative  word  for  a  deed  of  grant,  201. 
of  copyholds,  373,  374. 
implied  effect  of  the  word,  201,  445,  446. 
GROSS,  incorporeal  hereditaments  in,  329,  458. 
seignory  in,  329. 
common  in,  340,  458,  459. 
advowson  in,  326,  340,  343. 
prescription  for  exercise  of  rights  in,  458. 
GUARDIAN,  123. 


5^4  INDEX. 

H. 

HABENDUM,  191,  196,  197,  514,  532. 
HALF-BLOOD,  descent  to,  109,  114,  470. 
HEIR,  anciently  took  entirely  from  grantor,  18. 
at  first  meant  only  issue,  36. 
alienation  as  against,  38. 
is  appointed  by  the  law,  64,  96. 
bound  by  specialty,  80. 
at  law,  96,  97. 
expectant,  42. 
apparent,  96. 
presumptive,  96. 
cannot  disclaim,  97. 

word  "heirs"  used  in  conveyance  of  estate  of  inheritance,  144. 
is  a  word  of  limitation,  144',  255. 
devise  to,  218. 

contingent  remainder  to,  258,  261,  265. 
gift  to  "  heirs,"  265. 
HEREDITAMENTS,  5,  7. 

incorporeal,  11,  239,  322,  339. 
HERIOTS,  367,  370. 
HIDES  and  yard  lands,  495. 
HIGH  Court  of  Justice,  83,  91,  138,  139,  160. 
HIGH  treason,  57,  68,  126,  366. 
HOMAGE,  120,  372. 
HONOR,  titles  of,  8,  347. 
HULL  registry,  194. 

HUSBAND,  right  of,  in  his  wife's  lands,  96,  223,  229,  407. 
Married  Women's  Property  Act,  1870,  225,  408. 
and  wife  one  person,  226. 
cannot  convey  to  his  wife,  227. 

unless  by  Statute  of  Uses,  227. 
holding  over,  is  a  trespasser,  230. 
appointment  by,  to  his  wife,  300. 


I. 
IDIOTS,  66,  146,  378,  454. 
IMMOVEABLE  property,  2,  5. 
IMPLICATION,  gifts  in  a  will  by,  216. 
IMPROVEMENTS,  30,  31,  72,  389,  390,  410. 
1NCLOSURE.  324,  325. 

conveyance  of,  will  carry  adjoining  waste,  327. 

commissioners,  138,  325,  337. 

partition  by,  138. 
INCORPORATED  charities,  77,  78. 
INCORPOREAL  property,  11,  239,  322,  339. 
not  subject  to  tenure,  339. 
INDENTURE,  150. 
INDESTRUCTIBILITY  of  land,  1. 
INDUCTION,  340. 


INDEX.  54") 

INFANTS,  6G,  146,  314,  378,  454. 

marriage  settlements,  66,  301. 
INHERITANCE,  law  of.— See  Descent. 

trust  of  terms  to  attend  the,  416,  417. 

owner  of,  subject  to  attendant  term,  had  a  real  estate  in  equity.  419. 
INJUNCTION,  24,  175,  176,  177,  178. 
INNOCENT  conveyance,  200. 
INROLMENT  of  deeds  barring  estate  tail,  48,  n.,  49,  380. 

of  conveyance  for  charitable  uses,  68,  72,  73,  75,  76. 
of  separate  deed  of  trust,  71. 
of  bargain  and  sale,  185,  201. 

of  memorial  of  deeds  as  to  lands  in  Middlesex  and  Yorkshire,  194,  164. 
of  wills  in  Middlesex  and  Yorkshire,  221,  222. 
of  memorial  of  annuities  for  lives,  330,  331,  465. 
INSOLVENCY,  93,  94,  465. 
INSTITUTION,  340. 
INSURANCE,  forfeiture  of  lease  for  non-,  courts  may  relieve,  401. 

protection  of  purchaser  of  leaseholds  against  non-,  402. 
INTENTION,  rule  as  to  observing,  in  wills,  212,  215. 
INTERESSE  termini,  395. 

INTEREST,  stipulation  to  raise,  void,  433,  434. 
stipulation  to  diminish,  good,  434. 
former  highest  legal  rate  of,  434. 
INTESTACY,  10,  21,96,  438. 

of  a  bare  trustee,  116. 
INVESTMENT  of  charity  funds,  77. 
IRELAND,  leases  by  tenant  for  life  in,  26,  27,  229. 
ISSUE,  in  tail,  bar  of,  48,  53. 

devise  to,  of  testator,  211. 

devise  in  case  of  death  without,  214. 


JOINT  stock  companies,  78. 
JOINT  tenants  for  life,  132. 
in  tail,  132. 
in  fee  simple,  133. 
of  copyholds,  368. 
trustees  made,  134. 
release  by,  135. 
tenancy,  severance  of,  137. 
estate,  no  curtesy  of,  228. 

no  dower  of,  233,  234. 
JOINTURE,  235. 

equitable,  236. 
JUDGMENT  debts,  58,  84,  85,  86,  170. 

lien  of,  now  abolished,  i 
in  counties  palatine,  90. 
registry  of,  86,  87. 
as  to  trust  estates,  170. 
as  to  powers,  295. 


546  INDEX. 

JUDGMENT  debts,  as  to  copyholds,  364. 

search  for,  84,  88,  465. 

as  to  leaseholds,  404. 

limitation  of  actions  on,  456. 

against  a  mortgagee,  435. 
JUDICATURE. — See  Supreme  Court  of  Judicature  Acts. 


K. 


KNIGHTS  service,  120,  123. 


LAND,  indestructibility  of,  1,  5. 
term,  7,  n.,  14,  498. 
Transfer  Act,  467. 
means  arable  land,  498. 
LANDS,  liability  of,  for  debts,  79,  80,  82. 
LAPSE,  210,  211. 
LAW  and  equity,  distinct  systems,  175,  389. 

to  be  administered  concurrently,  176-178. 
LEASE,  agreements  for,  393. 

stamp  duty  on  agreements  for,  393,  n. 
from  year  to  year,  390. 
for  a  term  of  years,  8,  388. 
for  a  number  of  years,  117,  181,  392,  394. 
for  years,  is  personal  property,  and  why,  8,  10. 
for  life,  117. 

entry,  necessary,  181,  395. 
by  tenant  in  tail,  56. 
by  tenant  in  dower,  237. 
for  a  year  abolished,  187. 
leases  in  writing  to  be  by  deed,  392. 
no  formal  words  required  in  a,  392. 
by  tenant  for  life,  26,  305. 
by  husband  of  wife's  lands,  229. 
power  to,  26,  305,  306. 
by  copyholder,  354. 
stamps  on,  393,  n. 
by  estoppel,  395. 
rent  reserved  by,  396. 
mortgagor  cannot  make  a  valid,  424. 
forfeiture  of,  127,  n. 
LEASE  and  release,  180,  181,  186,  200. 

an  innocent  conveyance,  200. 
LEASEHOLDS,  will  of,  403. 

mortgage  of,  432. 

disclaimer  of,  in  event  of  bankruptcy,  405. 

purchaser  of,  protection  against  non-insurance,  402. 

formerly  entitled  to  a  sixty  years'  title,  449. 
cannot  now  require  lessor's  title,  450. 


INDEX.  547 


LEGACIES,  limitation  of  suits  for,  456,  458. 

charge  of,  221. 
LEGAL  doubts,  153. 

estate,  161,  178,  333,  424. 
memory,  458. 

rights  to  be  recognized,  178. 
LESSOR'S  title  cannot  now  be  required,  450. 

LICENSE,  effect  of  license  for  breach  of  covenants  in  a  lease,  398. 
restrictions  on  effect  of,  399. 
to  demise  copyholds,  354,  n. 
LIEN  of  vendor,  433,  438. 
LIFE  annuities,  330,  331,  465. 

estate  for,  16,  17,  19,  22,  33,  144,  213,  252,  254. 
joint  tenants  for,  132. 
equitable  estate  for,  163. 

tenant  for,  concurrence  of,  to  bar  entail,  52,  54. 
estate  for,  in  a  rent-charge,  334. 
estate  for,  in  copyholds,  350,  358. 
tenant  for,  entitled  to  custody  of  title-deeds,  462. 
forfeiture  of  life  estate,  146,  280. 
LIGHT,  limitation  of  right  to,  459. 

LIMITATION  of  estates,  143,  188,  272,  315,  316,  319,  529. 
of  a  vested  remainder  after  a  life  estate,  252. 
words  of,  144,  255. 
statutes  of,  453,  457,  458,  459. 
LIMITED  Owners  Residences  Acts,  31. 
LIS  pendens,  93. 
LITERARY  institutions,  75,  173. 

'incorporation  of  trustees,  77,  78. 
LIVERY  in  deed,  142. 
in  law,  143. 
of  wardship,  120. 
of  seisin,  140,  142,  143,  153,  155. 
corporeal  hereditaments  formerly  lay  in,  239. 
LOANS,  7. 

LODGERS'  Goods  Protection  Act,  245,  n. 
LOGIC,  scholastic,  160,  273. 
LONDON,  custom  of,  62. 
LOT  mead,  499. 
LUNATIC,  66,  146,  378,  454. 

M. 

MAINE,  Sir  Henry,  on  primogeniture,  503. 
MALES  preferred  in  descent,  102,  107,  108. 
MANDAMUS,  175,  178. 
MANORS,  119,  130,  n.,  350,  361. 

rights  of  lords  of,  to  wastes  by  side  of  common.  327. 

common  appendant,  119,  n.,  489. 
MARRIAGE,  120,  206. 

settlements,  66,  284,  307,  308. 


•548  INDEX. 

MARRIED  woman,  separate  property  of,  95,  223,  224,  384. 
has  no  disposing  power,  68,  93,  223. 
Married  Women's  Property  Act,  1870,  225,  384,  408. 
conveyance  of  her  lands,  231,  232. 
bare  trustee,  232,  376. 

surrender  of  her  copyhold  lands,  376,  381. 
rights  of,  in  her  husband's  lands,  96,  235. 
rights  of,  in  her  husband's  copyholds,  384,  385. 
admittance  of,  to  copyholds,  378. 
husband's  rights  in  her  term,  407. 
appointment  by,  300. 
release  of  powers  by,  311. 
release  of  her  right  to  dower,  233,  452. 
MATERNAL  ancestors,  descent  to,  107,  115. 
MEADOWS,  24,  495,  499. 
MEMORY,  legal,  458. 
MEN,  means  tenants,  498. 
MERGER,  249,  281,  413,  414. 

none  of  tithes  in  the  land,  347. 
of  tithe  rent-charge,  347. 
of  a  term  of  years  in  a  freehold,  413,  414. 
none  of  estates  held  in  autre  droit,  415. 
MERTON,  Statute  of,  5,  490,  497. 
MESSUAGE,  term,  13. 
MIDDLESEX  registry,  194,  221,  464. 

devise  of  lands  in,  221,  222. 
MINES,  14,  24,  79. 
lease  of,  27. 

sale  under  powers  reserving,  309. 
right  of  the  lord  of  copyholds  to,  354,  370. 
MODUS  decimandi,  457,  n.,  509. 
MONEY  land,  164. 
MORTGAGE,  386,  421. 

construction  of,  in  law,  423. 

for  payment  of  debts,  220,  317,  440. 

legacies,  220,  221. 
stamps  on,  422,  n. 
origin  of  term,  424. 
legal  estate  in,  424. 
to  trustees,  434. 

equity  of  redemption  of,  426,  436,  439. 
foreclosure  of,  426,  427,  428. 
power  of  sale  in,  428. 
s-tatutory  power  of  sale  in,  429. 
appointment  of  receiver  in,  429. 
fire  insurance  in,  402,  429. 
repayment  of,  430. 
of  copyholds,  430. 
of  leaseholds,  432. 
by  underlease,  432. 
by  deposit  of  title  deeds,  432. 


INDEX. 

MORTGAGE,  interest  on,  433,  434. 

to  joint  mortgagees,  435. 

now  primarily  payable  out  of  mortgaged  lands,  437,  438. 
30  &  31  Vict.  c.  69  .  .  437. 
tacking,  439,  440,  442. 
for  future  debts  and  advances,  440,  441. 
to  secure  an  account  current,  440,  n. 
for  future  costs,  441. 
for  long  term  of  years,  430. 
transfer  of,  436. 

effect  of  two  mortgages  by  same  person,  441. 
MORTGAGEE  and  mortgagor,  relative  rights  of,  424-428. 

legal  personal  representative  of,  may  convey  legal  estate,  431. 
judgment  against,  435. 
may  sue  in  his  own  name,  425. 
in  possession,  456. 
MORTGAGOR,  covenants  for  title  by  a,  447. 

limitation  of  his  rights  to  redeem,  456. 

must  give  notice  of  intention  to  repay  mortgage  money,  430. 
MORTMAIN,  45,  68,  69,  71,  72,  73,  76,  77. 
MOTHER,  descent  to,  114,  115. 
MOVEABLES,  2,  5. 
MUSEUM,  PUBLIC,  conveyance  of  land  for,  76. 

N. 

NAME,  directions  to  assume,  292. 
NATURAL  life,  23. 
NATURALIZATION,  65,  66. 

act  of  1870  .  .  65,  66,  165. 
NEW  trustees,  172-174. 

stamps  on  appointment  of,  174. 
NEXT  presentation,  344,  345. 
NORMAN  conquest,  2. 
NOTICE  of  an  incumbrance,  87,  417,  439. 

for  repayment  of  mortgage  money,  430. 

to  quit,  390. 
NOVEL  disseisin  of  common  of  pasture,  writ  of,  507. 

O. 

OCCUPANT,  20. 

of  a  rent-charge,  334. 
OPERATIVE  words,  191,  196,  513. 
ORDER  for  sale  by  Court  of  Chancery,  89. 
OWNERSHIP,  no  absolute  ownership  of  real  property,  17. 
OXGANGS,  496. 


54'J 


p. 


PALATINE,  judgments  in  counties,  90,  91. 
PARAMOUNT,  Queen  is  lady,  2,  118. 


550  INDEX. 

PARCELS,  191,  196,  513,  531. 
PARKS,  public,  conveyance  for,  76. 
PARTICULAR  estate,  241. 
PARTIES  to  a  deed,  190,  196,  512. 

person  taking  benefit  need  not  be  a  party,  151. 
PARTITION,  103,  137,  138,  325,  n.,  445. 
31  &  32  Vict.  c.  40  .  .  139. 
of  copyholds,  368. 
PASTORAL  holdings,  390. 

PATERNAL  ancestors,  descent  to,  107,  108,  113,  114. 
PATRON  of  a  living,  340. 
PERPETUITY,  51,  274,  318,  319,  529. 
PERSONAL  property,  7,  386. 
PETIT  serjeanty,  128. 
PLA.Y  grounds,  75. 
PLOUGHLANDS,  496. 
POND,  description  of,  14. 

PORTIONS,  terms  of  years  used  for  securing,  413. 
POSSESSION,  mortgagee  in,  456. 
POSSIBILITY,  alienation  of,  277,  278. 

of  issue  extinct,  tenant  in  tail  after,  54. 
on  a  possibility,  272. 
common  and  double,  272,  273. 
POSTHUMOUS  children,  270. 
POWER,  294,  301. 

vested  in  bankrupt  or  insolvent,  295. 

compliance  with  formalities  of,  296. 

attestation  of  deed  executing,  297. 

equitable  relief  on  defective  execution  of,  298. 

exercise  of,  by  deed,  296. 

exercise  of,  by  will,  299,  302. 

extinguishment  of,  302. 

suspension  of,  302. 

special,  304. 

of  leasing,  305,  306. 

estates  under,  how  they  take  effect,  310. 

release  of,  311. 

of  sale  in  mortgages,  428,  429. 

of  sale  and  exchange  in  settlements,  307,  308. 
PRAECIPE,  tenant  to  the,  47. 
PREDECESSOR,  287. 
PREMISES,  term,  14. 
PRESCRIPTION,  328,  458,  459. 
PRESENTATION,  340. 

next,  344,  345. 

sale  or  assignment  of,  by  spiritual  person,  when  void,  344,  345. 
PRESENTMENT  of  surrender  of  copyholds,  375. 

of  will  of  copyholds,  377. 
PRIMOGENITURE,  51,  103. 

Sir  Henry  Maine  on,  503. 
PRIVITY  between  lessor  and  assignee  of  term,  397. 


INDEX.  551 

PRIVITY,  none  between  lessor  and  under-lessee,  407. 

PROBATE,  Court  of,  207. 

PROCLAMATIONS  of  fine,  49. 

PROFESSED  persons,  23. 

PROFESSIONAL  remuneration,  197,  198,  n.,  200. 

PROFIT  a  prendre,  459. 

PROTECTOR  of  settlement,  52,  53,  363,  380. 

PUR  autre  vie,  estate,  20,  22,  59,  334,  335,  358. 

PURCHASE,  meaning  of  term,  100. 

when  heir  takes  by,  218. 
deed,  specimen  of  a,  190. 
deed,  stamps  on,  192,  193. 
money,  application  of,  452. 
PURCHASER,  voluntary  conveyances  void  as  to,  78. 
judgments  formerly  binding  on,  85,  93. 
protection  of,  without  notice,  87,  364,  417,  418. 
descent  traced  from  the  last,  100,  469. 
conveyance  to  the  use  of,  188. 
relief  against  mistaken  payment  by,  308. 
protection  against  non-insurance  against  fire,  402. 

Q. 
QUASI  entail,  59. 
QUEEN  is  lady  paramount,  2,  118. 

QUIA  emptores,  Statute  of  (see  statute  18  Edw.  I.  c.  1). 
QUIET,  enjoyment,  covenant  for,  515. 
QUIT  rent,  124,  127. 

R. 

RACK-RENT,  enactment  as  to  tenants  at,  27. 
RAILWAY  Rolling  Stock  Protection  Act,  245. 

shares,  personal  property,  8. 
REAL  property,  7,  10, 

act  to  amend  the  law  of,  181,  187,  244,  249,  278,  279,  282,  284.  146 
RECEIPT  clause,  452. 

of  trustees  now  discharges,  453. 

for  purchase-money,  form  of,  513. 
RECEIVER,  power  to  appoint  in  a  mortgage,  429. 
RECITAL  of  contract  for  sale,  190,  512. 

of  conveyance  to  vendor,  190,  196,  512. 
RECITALS  twenty  years  old  sufficient  evidence,  450. 
RECOGNIZANCES,  89. 
RECOVERIES,  search  for,  464. 
RECOVERY,  45,  46,  47,  48. 

customary,  362. 
RECREATION  grounds,  326. 
RECTORIES,  advowsons  of,  342. 
REDEMPTION,  equity  of,  426,  436,  439. 
RE-ENTRY,  condition  of,  245,  246,  397. 

not  now  destroyed  by  license  for  breach  of  covenant,  '■'■  ■ 

31 


552  INDEX. 

RE-ENTRY,  not  now  destroyed  by  waiver  of  breach  of  covenant,  400. 
REGISTER  of  judgments,  86,  87. 

of  writ  of  elegit,  88,  89. 
of  crown  debts,  92. 
of  lis  pendens,  93. 
of  deeds,  194,  461,  464. 
of  wills,  221,  222. 
search  in  the,  464. 
of  annuities,  331. 
REGISTRATION,  461. 

of  title,  466,  467. 
REGRANT  after  forfeiture,  362. 

RELEASE,  proper  assurance  between  joint  tenants,  135. 
conveyance  by,  180,  182,  200,  248. 

from  rent-charge  of  part  of  hereditaments  not  an  extinguishment.  837. 
of  powers  by  married  women,  311. 
RELIEF,  120,  122,  124,  127,  366. 
RELIGIOUS  association,  conveyance  to,  75. 

vesting  of  property  in  new  trustees,  173. 
incorporation  of  trustees,  77,  78. 
REMAINDER,  242,  250,  258. 

bar  of,  after  an  estate  tail,  52,  53. 
arises  from  express  grant,  242. 

no  tenure  between  particular  tenant  and  remainder-man,  250. 
vested,  251,  252. 

vested,  may  be  conveyed  by  deed  of  grant,  252. 
estates  in  remainder,  256. 
definition  of  vested,  253. 
example  of  vested,  267. 
contingent. — See  Contingent  Remainder. 
of  copyholds,  382. 
REMUNERATION,  professional,  197,  198,  n.,  200. 
RENEWABLE  leases,  249,  408,  409. 
RENT,  243,  396. 

quit,  124,  127. 
demand  for,  245. 
remedy. by  statute,  246. 
reservation  of,  244. 
apportionment  of,  28,  337. 
of  estate  in  fee  simple,  122,  124. 
service,  244,  245,  247,  250,  366,  396. 
passes  by  grant  of  reversion,  247. 
not  lost  now  by  merger  of  reversion,  249. 
none  incident  to  a  remainder,  250. 
•    seek,  329,  333. 
of  copyhold,  366. 

limitations  of  actions  and  suits  for,  456. 
RENT  charge,  330,  456,  461. 

power  to  grantee  to  distrain  for,  333. 
estate  for  life  in,  334. 
estate  in  fee  simple  in,  335. 


INDEX.  553 

RENT  charge,  release  of,  337. 

apportionment  of,  337. 

accelerated  by'  merger  of  prior  term,  417. 

grantee  of,  has  no  right  to  the  title  deeds,  461. 

creation  of,  under  the  Statute  of  Uses,  332. 

bankruptcy  of  owner  of  land  subject  to,  337,  338. 

exoneration  of  executors  and  administrators  from  liability  to  pay,  338. 
RESIDUARY  devise,  210. 
RESIGNATION,  agreement  for,  341. 
RESULTING  use,  158. 
REVERSION,  242,  247. 

bar  of,  expectant  on  an  estate  tail,  46,  52,  53. 

on  a  lease  for  years,  242. 

severance  of,  399. 

on  lease  for  life,  243. 

difficulty  in  making  a  title  to,  462. 

purchaser  of,  462. 

31  Vict.  c.  4,  463, 
REVOCATION,  conveyance  with  clause  of,  78. 

of  wills,  208,  209. 
RIVER,  soil  of,  327. 

rights  of  owner  of  lands  adjoining  to,  327. 
ROAD,  soil  of,  326. 
RULES,  technical,  in  construing  a  will,  212. 


SALE  of  copyhold  estates  by  trustee  in  bankruptcy,  365. 
of  settled  estates,  25,  26,  33.  54. 
for  payment  of  debts,  220,  221,  317. 
power  of,  in  settlements,  307,  309. 
contract  for. — See  Agreements. 
SATISFIED  terms,  419. 
SCHOLASTIC  logic,  160,  273. 
SCHOOLS,  endowed,  74. 

sites  for,  74,  75,  76. 
SCIENTIFIC  institutions,  75,  173. 

incorporation  of  trustees,  77,  78. 
SCINTILLA  juris,  293,  294. 
SEA-SHORE,  rights  of  owner  of  adjoining  lands  to,  327,  32* 

rights  of  the  Crown  to,  327,  328. 
SE1GNORY,  322. 

in  gross,  329. 
SEISIN,  101,  140,  153,  183,  293,  357,  482. 

transfer  of,  required  to  be  notorious,  184,  269. 
actual  seisin  required  for  curtesy,  228. 
legal  seisin  required  for  dower,  233. 
of  copyhold  lands  is  in  the  lord,  353. 
SEIZURE  of  copyholds,  377. 
SEPARATE  property  of  wife,  95,  223,  224,  228,  n.,  380,  384. 


")54  INDEX. 

SERJEANTY,  grand,  tenure  of,  128. 
petit,  tenure  of,  128. 
SERVICES,  feudal,  41. 
SERVIENT*  tenement,  459. 

SETTLED  estates,  leases  and  sales  of,  25,  26,  33,  34,  54,  229. 
SETTLEMENT,  50. 

protector  of,  52,  53,  363,  380. 
on  infants  on  marriage,  66,  301. 
voluntary,  79. 
extract  from  a,  284. 
of  copyholds,  380. 
SEVERALTY,  104,  131. 
S  EV  E U ANCE  of  joint  tenancy,  136. 

of  reversion,  399. 
SHELLEY'S  case,  rule  in,  253,  256,  259,  262,  n. 
SHIFTING  use,  272,  290,  291,  294,  314,  315,  319,  383. 

no  limitation  construed  as,  which  can  be  regarded  as  a  remainder.  293. 
in  copyhold  surrenders,  384. 
SIGNING  of  deeds,  152: 

of  wills,  204,  205. 
SIMONY,  344: 
SITES  for  schools,  74,  75. 

for  places  of  worship  and  burial,  75. 
SOCAGE,  tenure  of  free  and  common,  121,  122. 

derivation  of  word,  121,  u. 
SOIL  of  river,  327. 
of  road,  326. 
SON'S,  descent  to,  102,  110. 
SPECIAL  occupant,  20. 
SPECIALTY,  heir  bound  by,  80. 

SPRINGING  uses,  272,  290,  292,  293,  294,  314,  n.,  319,  3f 
STAMPS  on  deeds,  149,  192,  193,  240. 

abolition  of  progressive  duty,  150,  193,  n. 
on  purchase  deeds,  192,  193. 

on  conveyances  in  consideration  of  annuities,  33G. 
STAMPS  on  agreements,  167,  n. 

on  declarations  of  trust,  167,  n. 

on  appointment  of  new  trustees  of  charity  property,  173,  174. 
on  presentation  to  ecclesiastical  benefice,  341. 
on  agreements  for  leases,  394,  n. 
on  orders  of  court  vesting  trust  property,  173. 
on  lease  for  year  now  repealed,  181,  n. 
on  surrender  of  copyholds,  374,  n. 
on  leases,  393,  n. 
on  assignment  of  leases,  402,  n. 
on  covenant  to  surrender  copyholds,  446,  n. 
on  appointment  ot  new  trustees.  174. 
on  covenant  for  production  of  title,  deeds,  463,  n. 
on  mortgages,  422,  n. 

on  securities  for  the   payment  of  money  advanced   on  an  account  current, 
i  to,  n. 


INDEX.  655 

STATUTES  cited: 

9  Hen   III.  c.  29  (Magna  Charta,  freemen),  361. 
9  Ik-n.  HI.  c.  32  (Magna  Charta,  alienation),  41. 
20  Hen.  III.  c.  4  (approvement),  5,  490,  497. 
,        3  Edw.  I.  c.  39  (limitation),  458. 
4  Edw.  I.  c.  G  (warranty),  42.  443. 
6  Edw.  I.  c.  3  (warranty),  444. 
6  Edw.  I.  c.  5  (waste),  24. 

12  Edw.  I.  (Statutum  Wallise),  505. 

,     13  Edw.  I.  c.  1  (De  donis),  5,  6,  17,  43,  61,  281,  360,  444,  526. 

13  Edw.  I.  c.  18  (judgments),  84,  170. 
13  Edw.  I.  c.  32  (mortmain),  45. 

,3  Edw.  I.e.  46  (commons),  497  127,  279,  323.  336,  360,  491, 

18  Edw.  I.  c.  1  (Quia  emptores),  18,  62,  84,  118,  U»,  m, 

493,  495. 
18  Edw.  I.  c.  2  (apportionment  of  services),  62. 
18  Edw.  I.  stat.  4  (fines),  49. 
25  Edw.  III.  stat.  2  (natural-born  subjects),  6o. 
34  Edw.  III.  c.  16  (fines),  49. 
15  Rich.  II.  c.  6  (vicarages),  344. 
4  Hen.  IV.  c.  12  (vicarages),  344. 
1  Rich.  HI.  c.  1  (uses),  157. 
1  Rich.  III.  c.  7  (fines),  49. 
4  Hen.  VII.  c.  24  (fines),  49. 

11  Hen.  VII.  c.  20  (tenant  in  tail  ex  provisione  vm),  55,  444. 
19  Hen.  VII.  c.  15  (uses),  170. 
21  Hen   VIII.  c.  4  (executors  renouncing),  313,  3»d. 

26  Hen.  VIII.  c.  13  (forfeiture  for  treason),  57,  126  183903   217. 

27  Hen   VIII.  c.  10  (Statute  of  Uses),  16,  63,  146,   154,  155,  HO,   183,  .03, 
*      J?  H  V    231,  235,  289,  290,  312,  332,  379. 

ss.  4,  5  (rent-charge),  332. 
27  Hen.  VIII.  c.  16  (enrolment  of  bargains  and  sales),  185,  201. 
27  Hen.  VIII.  c.  26  (Wales),  508.  _ 

27  Hen.  VIII.  c.  28  (dissolution  of  smaller  monasteries),  34o,  346. 
31  Hen.  VIII.  c.  1  (partition),  137. 

31  Hen   VIII   c.  13  (dissolution  of  monasteries),  34b. 
,      32  Hen.  VIII.  c.  1  (wills),  18,  63,  203,  214,  313 

32  Hen.  VIII.  c.  2  (limitation  of  real  actions),  4o0. 
32  Hen   VIII.  c.  7  (conveyances  of  tithes),  346. 

32  Hen.  VIII.  c.  24  (dissolution  of  monasteries),  346. 

32  Hen.  VIII.  c.  28  (leases  by  tenant  in  tail,  &c),  ob,  -J. 

32  Hen.  VIII.  c.  32  (partition),  137. 

32  Hen.  VIII.  c.  34  (condition  of  re-entry),  246,  397. 

32  Hen.  VIII.  c.  36  (fines),  50,  56. 

33  Hen.  VIII.  c.  39  (crown  debts),  58,  91. 

,     34  &  35  Hen.  VIII.  c.  5  (wills),  63,  203.      • 

34  &  35  Hen.  VIII.  c.  20  (estates  tail  granted  by  crown),  54. 
34  &  35  Hen.  VIII.  c.  26  (Wales),  508. 

37  Hen.  VIII.  c.  9  (interest),  424. 
3  &  4  Edw.  VI.  c.  3  (commons),  497. 
5  &  6  Edw.  VI.  c.  11  (forfeiture  for  treason),  57,  1.6. 


556  INDEX. 

STATUTES  cited: 

5  &  6  Edw.  VI.  c.  16  (offices),  95. 

5  Eliz.  c.  26  (palatine  courts),  201. 
13  Eliz.  c.  4  (crown  debts),  58,  91. 

13  Eliz.  c.  5  (defrauding  creditors), 78. 

13  Eliz.  c.  20  (charging  benefices),  95. 

14  Eliz.  c.  7  (collectors  of  tenths),  58. 

14  Eliz.  c.  8  (recoveries),  55. 

27  Eliz.  c.  4  (voluntary  conveyances),  78. 

31  Eliz.  c.  2  (fines),  49. 

31  Eliz.  c.  6  (simony),  344. 

39  Eliz.  c.  18  (voluntary  conveyances),  78. 

21  Jac.  I.  c.  16  (limitations),  453. 

12  Car.  II.  c.  24  (abolishing  feudal  tenures),  6,  63,  123,  128,  131,  366. 

15  Car.  II.  c.  17  (Bedford  level),  195. 

\   29  Car.  II.  c.  3  (Statute  of  Frauds),  s.  1  (leases,  &c,  in  writing),   151,  167,   187. 

244,  389,  391,  392,  433. 
s.  2  (exception),  152,  244,  391,  392. 
s.  3  (assignments,  &c,  in  writing),  402,  406,  433, 
s.  4  (agreements  in  writing),  167. 
s.  5  (wills),  204. 

ss.  7,  8,  9  (trusts  in  writing),  167. 
s.  10  (trust  estates),  169,  170. 
s.  12  (estate  pur  autre  vie),  18,  20. 
s.  16  (chattels),  404. 

2  Will.  &  Mary,  c.  5  (distress  for  rent),  245. 

3  &  4  Will.  &  Mary,  c.  14  (creditors),  81,  170. 

4  &  5  Will.  &  Mary,  c    16  (second  mortgage),  439. 

4  &  5  Will.  &  Mary,  c.  20  (docket  of  judgments),  85. 

6  &  7  Will.  III.  c.  14  (creditors),  81. 

7  &  8  Will.  III.  c.  36  (docket  of  judgments),  85. 

7  &  8  Will.  III.  c   37  ("conveyance  to  corporations),  77. 

10  &  11  Will.  III.  c.  16  (posthumous  children),  270. 

11  &  12  Will.  III.  c.  6  (title  by  desceut),  65. 

2  &  3  Anne,  c.  4  (West  Riding  registry),  194,  221. 

4  &  5  Anne,  c.  16,  ss.  9,  10  (attornment),  248,  324. 

s.  21  (warranty),  444. 

5  Anne,  c.  18  (West  Riding  registry),  194,  201. 

6  Anne,  c.  18  (production  of  cestui  que  vie),  21,  22,  230. 

6  Anne,  c.  35  (East  Riding  registry),  194,  201,  221,  446. 

7  Anne,  c.  5  (natural-born  subjects),  65. 

7  Anne,  c.  20  (Middlesex  registry),  194,  221. 

8  Anne,  c.  14  (distress  for  rent),  245. 

10  Anne,  c.  18  (copy  of  enrolment  of  bargain  and  sale),  201. 

12  Anne,  stat.  2,  c.  12  (presentation),  345. 
12  Anne,  stat.  2,  c.  16  (usury),  434. 

4  Geo.  II.  c.  21  (aliens),  65. 

4  Geo.  II.  c.  28  (rent),  245,  246,  249,  330,  333,  407,  409. 

7  Geo.  II.  c.  20  (mortgage),  425,  428. 

8  Geo.  II.  c.  6  (North  Riding  registry),  194,  201,  221,  446. 

9  Geo.  II.  c.  36  (charities),  68,  69. 


INDEX.  5°» 

STATUTES  cited: 

11  Geo.  II.  c.  19  (rent),  29,  245,  248. 
14  Geo.  II.  c.  20  (common  recoveries),  47,  52. 
s.  9  (estate  pur  autre  vie),  21. 
25  Geo.  II   c.  6  (witnesses  to  wills),  206. 
25  Geo.  II.  c.  39  (title  by  descent),  65. 
9  Geo.  III.  c.  16  (crown  rights),  451. 
13  Geo.  III.  c.  21  (natural-born  subjects),  65. 
25  Geo.  III.  c.  35  (crown  debts),  58,  91. 
31  Geo.  Ill-  c.  32  (Roman  Catholics),  23. 
39  Geo.  III.  c.  93  (treason),  126. 
39  &  40  Geo.  III.  c.  56  (money  land),  164. 
39  &  40  Geo.  III.  c.  88  (escheat),  127. 
39  &  40  Geo.  III.  c.  98  (accumulation),  320. 
41  Geo.  III.  c.  109  (General  Inclosure  Act),  324. 
44  Geo.  III.  c.  98  (stamps),  194. 

47  Geo   III.  sess.  2,  c.  24  (forfeiture  to  the  crown),  127. 
47  Geo.  III.  sess.  2,  c.  25  (half-pay  and  pensions),  96. 

47  Geo.  III.  c.  74  (debts  of  traders),  81,  170. 

48  Geo.  III.  c.  149  (stamps),  194. 

49  Geo.  III.  c.  126  (offices),  95. 

53  Geo.  III.  c.  141  (inrolment  of  memorial  of  life  annuities),  331. 

54  Geo.  III.  c.  145  (attainder),  126.  _ 

54  Geo.  III.  c.  168  (attestation  to  deeds  exercising  powers),  -J7. 

55  Geo.  III.  c.  184  (stamps),  150,  194. 

55  Geo.  III.  c.  192  (surrender  to  use  of  will),  377. 

57  Geo.  III.  c.  99  (benefices),  95. 

59  Geo.  III.  c.  94  (forfeiture  to  the  crown),  127. 

I  &  2  Geo.  IV.  c.  121  (crown  debts),  91. 
3  Geo.  IV.  c.  92  (annuities),  331. 

6  Geo.  IV.  c.  16  (bankruptcy),  295. 

6  Geo.  IV.  c.  17  (forfeited  leaseholds),  127. 

7  Geo.  IV.  c.  45  (money  land),  164. 
7  Geo.  IV.  c.  75  (annuities),  331. 

9  Geo.  IV.  c.  31  (petit  treason),  126. 
9  Geo.  IV.  c.  85  (charities),  69. 
9  Geo.  IV.  c.  94  (resignation),  341. 

10  Geo.  IV.  c.  7  (Roman  Catholics),  23. 

II  Geo    IV.  &  1  Will.  IV.  c.  20  (pensions),  96. 

11  Geo.  IV.  &  1  Will.  IV.  c.  47  (sale  to  pay  debts),  32,  67,  81,  1(0,  317. 
11  Geo.  IV.  &  1  Will.  IV.  c.  60  (trustees),  172. 

11  Geo.  IV.  &  1  Will.  IV.  c.  65  (infants,  &c),  67,  378,  409. 
11  Geo.  IV.  &  1  Will.  IV.  c.  70  (administration  of  justice),  90,  201. 
2  &  3  Will.  IV.  c.  71  (Prescription  Act),  459,  510. 

s.  1  (rights  of  common,  &c),  459. 

s.  2  (way,  water),  459. 

s.  3  (light),  459,  460. 

s.  4  (acquiescence),  460. 

s.  7  (disabilities),  460. 

s.  8  (ways,  water),  460. 
2  &  3  Will.  IV.  c.  100  (tithes),  457. 


558  INDEX. 

STATUTES  cited  : 

2  &  3  Will.  IV.  c.  115  (Roman  Catholics),  23. 

3  &  4  Will.  IV.  c.  27  (limitations),  454. 

s.  1  (rents,  tithes,  &c),  457. 

s.  2  (estate  in  possession),  454. 

s.  3  (remainders  and  reversions),  454. 

s.  14  (acknowledgment  of  title),  454. 

ss.  16-18  (disabilities),  454. 

s.  25  (express  trust),  455. 

s,  26  (concealed  fraud),  455. 

s.  27  (acquiescence),  456. 

s.  28  (mortgage),  456. 

s.  30  (advowson),  456. 

s.  33  (advowson),  456. 

s.  34  (extinguishment  of  right),  457. 

s.  36  (abolishing  real  actions),  24,  103,  138,  238,  450. 

s.  39  (warranty  not  to  defeat  right  of  entry),  445. 

s.  40  (judgments,  legacies,  &c),  456. 
3  &  4  Will.  IV.  c.  42  (distress  for  rent),  245. 
3  &  4  Will.  IV.  c.  74  (fines  and  recoveries  abolished),  48,  50,  231,  311,  363. 

ss.  4,  5,  6  (ancient  demesne),  131. 

s.  14  (warranty),  445. 

s.  15  (leases),  57. 

s.  18  (reversion  in  the  crown),  54,  55. 

s.  22  (protector),  53. 

s.  32  (protector),  53. 

ss.  34,  35,  36,  37  (protector),  53. 

s.  40  (will,  contract),  56,  57. 

s.  41  (inrolment),  47,  57. 

ss.  42-47  (protector),  53. 

ss.  50-52  (copyholds),  363,  381. 

s.  53  (equitable  estate  tail  in  copyholds),  380. 

s.  54  (entry  on  court  rolls),  380. 

ss.  56-73  (bankruptcy),  58,  365. 

ss.  70,  71  (money  land),  164. 

s.  74  (inrolment),  48. 

ss.  77-80  (alienation  by  married  women),  231,  311,  382. 

ss.  87,  88  (index  of  acknowledgments),  465. 

s.  90  (wife's  equitable  copyholds),  381. 
3  &  4  Will.  IV.  c.  87  (inclosure,  inrolment  of  award),  324. 
3  &  4  Will.  IV.  c.  104  (simple  contract  debts),  82,  169,  364. 
3  &  4  Will.  IV.  c.  105  (dower),  232,  236,  385. 

3  &  4  Will.  IV.  c.  106  (descents),  10,  98,"  99,  100,  107,   109,   110,  218,  266,  365, 

485,  520. 

4  &  5  Will.  IV.  c.  22  (apportionment),  29. 

4  &  5  Will.  IV.  c.  23  (trust  estates),  127,  166,  172. 
4  &  5  Will.  IV.  c.  30  (common  fields  exchange),  326. 

4  &  5  Will.  IV.  c.  83  (tithes),  457. 

5  &  6  Will.  IV.  c.  41  (usury),  434. 

6  &  7  Will.  IV.  c.  19  (Durham),  90. 

6  &  7  Will.  IV.  c.  71  (commutation  of  tithes),  347. 


INDEX. 


559 


STATUTES  cited : 

6  &  7  Will. 

7  Will.  IV. 


7  Will.  IV. 

7  Will.  IV. 

1  &  2  Vict. 

1  &  2  Vict. 

1  &  2  Vict. 

1  &  2  Vict. 

1  &  2  Vict. 

2  &  3  Vict. 

2  &  3  Vict. 

2  &  3  Vict. 

2  &  3  Vict. 

3  &  4  Vict. 

3  &  4  Vict. 

3  &  4  Vict. 

3  &  4  Vict. 

3  &  4  Vict. 

4  &  5  Vict. 

4  &  5  Vict. 

4  &  5  Vict. 

5  Vict.  c.  7 

5  &  6  Vict. 

5  &  6  Vict. 

5  &  6  Vict. 

6  &  7  Vict. 

6  &  7  Vict. 

6  &  7  Vict. 

IV.  c.  115  (inclosure  of  common  fields),  326. 

&  1  Vict.  c.  26  (wills),  204,  214,  299,  301,  335,  359. 

s.  2  (repeal  of  old  statutes),  125,  335,  377. 

s.  3  (property  devisable),  21,  125,  2u4.  27s,  335 
375,  377,  470. 

ss.  4,  5  (copyholds),  377. 

s.  6  (estate  pur  autre  vie),  21,  335,  359. 

s.  7  (minors),  124. 

s.  9  (execution  and  attestation),  204,  377. 

s.  10  (execution  of  appointments),  299. 

ss.  14-17  (witnesses),  207. 

ss.  18-21  (revocation),  208,  209. 

s.  23  (subsequent  disposition),  209. 

s.  24  (will  to  speak  from  death  of  testator),  210. 

s.  25  (residuary  devise),  210. 

s.  26  (general  devise),  403. 

s.  27  (general  devise  on  exercise  of  general  power), 
302. 

s.  28  (devise  without  words  of  limitation),  20,  214. 

s.  29  (death  without  issue),  215. 

ss.  30,  31  (estates  of  trustees),  218. 

s.  32  (estate  tail,  lapse),  211. 

s.  33  (devise  to  issue,  lapse),  211. 
&  1  Vict.  c.  28  (mortgagees),  454. 
&  1  Vict.  c.  69  (tithe  commutation),  347. 
c.  20  (Queen  Anne's  bounty),  446. 
c.  64  (tithes),  347. 
c.  69  (trust  estates),  172. 
c.  106  (benefices),  95. 
c.  110  (judgment  debts,  insolvency),  58,  85,  86,  87,  90,  92,  93,  94, 

171,  295,  364,  404. 
c.  11  (judgments,  &c),  86,  87,  88,  91,  171,  364,  404. 
c.  37  (interest),  434. 

c.  60  (mortgage  to  pay  debts,  infants),  32,  67,  317. 
c.  62  (tithes),  347. 
c.  15  (tithes),  347. 
c.  31  (inclosure),  324,  326. 
c.  55  (draining,  now  repealed),  30. 
c.  82  (judgments),  86,  87. 
c.  113  (spiritual  persons),  345. 

c.  21  (abolishing  lease  for  a  year),  180,  187,  194,  513. 
c.  35  (copyholds),  130,  368,  369,  370,  372,  373,  374,  375,  376,  377. 
c.  38  (sites  for  schools),  75. 
(tithes),  347. 

c.  32  (fines  and  recoveries  in  Wales  and  Cheshire),  465. 
c.  54  (tithes),  347. 
c.  116  (insolvency),  94. 
c.  23  (copyholds),  368,  369. 
c.  63  (solicitor's  bills),  198. 
c.  85  (interested  witnesses),  207. 


560 


INDEX. 


STATUTES  cited  : 

7  &  8  Vict.  c.  37  (sites  for  schools),  75. 

7  &  8  Vict.  c.  55  (copyholds),  368,  369. 

7  &  8  Vict.  c.  66  (aliens),  64,  65. 

7  &  8  Vict.  c.  76  (transfer  of  property,  now  repealed),  140,  141,  180,  194,  513. 

s.  2  (conveyance  by  deed),  180. 

s.  3  (partition,  exchange,  and  assignment  bv  deed),   104,   138, 
402. 

s.  4  (leases  and  surrenders  by  deed),  244,  392,  414. 

s.  5  (alienation  of  possibilities),  316. 

s.  6  (the  words  grant  and  exchange),  446. 

s.  7  (feoffment),  66. 

s.  8  (contingent  remainders),  263,  279,  282. 

s.  10  (receipts),  452. 

s.  11  (indenting  deeds),  151. 

s.  12  (merger  of  reversion  on  a  lease),  249. 

s.  13  (time  of  commencement),  180. 

7  &  8  Vict.  c.  96  (insolvency),  94. 

8  &  9  Vict.  c.  18  (lands  clauses  consolidation),  446. 
8  &  9  Vict.  c.  56  (draining),  30. 

8  &  9  Vict.  c.  99  (tenants  of  crown  lands),  249,  399. 

8  &  9  Vict.  c.  106  (amending  law  of  real  property),  138,  140,  141,  152,  187,  194, 
249,  282,  284. 

s.  1  (contingent  remainders),  263,  452. 

S.  2  (grant),  181,  240. 

s.  3  (deed),   104,   129,   138,   146,   152,   244,  250,  391,  392,  402, 
406,  414. 

s.  4  (feoffment,  &c),  66,  146,  446. 

s.  5  (indenture),  151. 

s.  6  (possibilities),  278,  316. 

s.  7  (married  women),  231. 

s.  8  (contingent  remainders),  279. 

s.  9  (reversion  on  lease),  249. 
8  &  9  Vict.  c.  112  (satisfied  terms),  419,  420. 
8  &  9  Vict.  c.  118  (Inclosure  Act),  139,  324,  325,  326. 
8  &  9  Vict.  c.  119  (conveyances),  197,  200. 

8  &  9  Vict.  c.  124  (leases),  197,  200. 

9  &  10  Vict.  c.  70  (inclosure),  139,  324,  325,  326. 
9  &  10  Vict.  c.  73  (tithes),  347. 

9  &  10  Vict.  c.  101  (draining),  31. 
10  k   11  Vict,  c.  11  (draining),  30. 
10  &  11  Vict.  c.  38  (draining),  325. 

10  &  11  Vict.  c.  102  (bankruptcy  and  insolvency),  86,  94. 
10  &  11  Vict.  c.  104  (tithes),  347. 

10  &  11  Vict.  c.  Ill  (inclosure),  139,  324,  326. 

11  &  12  Vict.  c.  70  (proclamations  of  fines),  49. 
11  &  12  Vict.  c.  87  (infant  heirs),  67,  317. 

11  &  12  Vict.  c.  99  (inclosure),  139,  319,  324,  325,  326. 

11  &  12  Vict.  c.  119  (draining),  30. 

12  &  13  Vict.  c.  26  (leasing),  305,  306. 
12  &  13  Vict.  c.  49  (sites  for  schools),  75. 


INDEX.  5bl 

STATUTES  cited: 

12  &  13  Vict.  c.  83  (inclosure),  139,  324,  325,  326. 
12  &  13  Vict.  c.  89  (treasury  commissioners),  91. 
12  &  13  Vict.  c.  100  (drainage),   31. 

12  k  13  Vict.  c.  106  (bankruptcy),  295,  338,  365. 

13  &  14  Vict.  c.  17  (leasing),  305,  306. 
13  &  14  Vict.  c.  21  (interpretation),  449. 

13  &  14  Vict.  c.  28  (religious  and  educational  trusts),  173. 

13  k  14  Vict.  c.  31  (draining),  30. 

13  &  14  Vict.  c.  56  (interest),  434. 

13  &  14  Vict.  c.  60  (trustees),  33,  67,  127,  138,  166,  172,  173,  368. 

13  k  14  Vict.  c.  97  (stamps),  150,  181,  193,  240. 

14  &  15  Vict.  c.  24  (sites  for  schools),  75. 

14  &  15  Vict.  c.  25  (emblements,  distress,  &c),  28,  245. 
14  &  15  Vict.  c.  53  (enclosure,  tithes),  324,  347,  368. 
14  &  15  Vict.  c.  83  (Lords  Justices),  86. 

14  k  15  Vict.  c.  99  (evidence),  207. 

15  &  16  Vict.  c.  24  (Wills  Act  amendment),  205. 
15  &  16  Vict.  c.  48  (lunatics),  67. 

15  &  16  Vict.  c.  49  (sites  for  schools),  75. 

15  k  16  Vict.  c.  51  (copyhold  enfranchisement),  368,  369,  370,  371. 

15  &  16  Vict.  c.  55  (trustees),  67,  172. 

15  &  16  Vict.  c.  76  (common-law  amendment),  245,  246,  425. 

15  &  16  Vict.  c.  79  (inclosures),  139,  324,  325,  326. 

15  &  16  Vict.  c.  86  (chancery  amendment),  428. 

16  k  17  Vict.  c.  51  (succession  duty),  286,  287,  288,  311. 
16  &  17  Vict.  c.  70  (idiots  and  lunatics),  67,  378,  409. 
16  &  17  Vict.  c.  83  (witnesses),  207. 

16  &  17  Vict.  c.  107  (crown  bonds),  92. 

16  &  17  Vict.  c.  124  (copyholds,  inclosures,  tithes),  347. 

16  &  17  Vict.  c.  137  (charity  commissioners),  74,  173. 

17  k  18  Vict.  c.  75  (alienation  by  married  women),  231. 
17  &  18  Vict.  c.  83  (stamps),  336. 

17  &  18  Vict.  c.  90  (usury  law  repeal),  331,  434. 

17  k  18  Vict.  c.  97  (inclosures),  139,  324,  325,  326,  337. 

17  &  18  Vict.  c.  112  (literary  and  scientific  institutions),  75,  173. 

17  &  18  Vict.  c.  113  (mortgage  debts),  437. 

17  &  18  Vict.  c.  125  (common-law  procedure),  175,  176,  192. 

18  &  19  Vict.  c.  13  (estate  of  idiots  and  lunatics),  67. 
18  &  19  Vict.  c.  15  (purchasers'  protection),  86. 

ss.  2,  3  (palatine  courts),  90. 
ss.  4,  5  (notice  to  purchaser),  87. 
s.  6  (registration  of  judgments),  87. 
s.  10  (orders  in  bankruptcy),  87. 
s.  11  (mortgages),  435. 
ss.  12-14  (annuities),  332. 
18  &  19  Vict.  c.  43  (settlements  on  infants),  66,  67,  301. 

18  k  19  Vict.  c.  124  (charity  commissioners),  74,  77,  173. 

19  &  20  Vict.  c.  9  (drainage),  31. 

19  &  20  Vict.  c.  47  (joint-stock  companies),  78,  446. 

19  &  20  Vict.  c.  97  (Mercantile  Law  Amendment  Act),  405,  456. 


562  INDEX. 

STATUTES  cited  : 

19  &  20  Vict.  c.  108,  s.  73  (acknowledgment  of  deeds  by  married  women).  231. 

19  &  20  Vict.  c.  120  (leases  and  sales  of  settled  estates,  now  repealed),  26.  33. 

s.  11  (sale  of  timber),  25. 

ss.  32,  33  (leases  by  tenant  for  life),  229,  230,  237. 

s.  35  (repeal  of  former  acts),  57,  229. 

s.  42  (reversion  in  the  crown),  54. 

ss.  44,  46  (commencement  of  act),  26. 

20  &  21  Vict.  c.  14  (joint-stock  companies),  78. 

20  &  21  Vict.  c.  31  (inclosures),  139,  324,  325,  326. 

20  &  21  Vict.  c.  77  (Court  of  Probate),  10,  207. 

21  &  22  Vict.  c.  27  (Chancery  Amendment  Act),  24,  176. 
21  &  22  Vict.  c.  45  (county  of  Durham),  90. 

21  &  22  Vict.  c.  53  (inclosure,  tithes),  139,  324,  347,  368. 

21  &  22  Vict,  c    60  (joint-stock  companies),  78. 

21  <k  22  Vict.  c.  77  (settled  estates),  26,  33,  230,  354. 

21  &  22  Vict  c.  94  (commutation  of  manorial  rights),  368,  369,  370. 

21  &  22  Vict.  c.  95  (Court  of  Probate),  10,  207. 

22  Vict.  c.  27  (literary  institutions),  75. 

22  &  23  Vict.  c.  35  (property  amendment  and  relief  of  trustees),  219,  402. 
ss.  1,  2  (effect  of  license),  399. 
s.  3  (severance  of  reversion),  399. 
s.  5  (relief  to  be  recorded  on  lease),  401. 
s.  6  (court  to  grant  relief  once  only),  402. 
s.  7  (lessor  to  have  benefit  of  informal  insurance),  402. 
s.  8  (protection  of  purchasers  against  non-insurance,  &c), 

403. 
s.  10  (rent-charge),  337. 
s.  12  (powers),  298. 

s.  13  (purchase-money,  mistaken  payment),  308. 
s.  14  (trustees  of  wills),  219,  401. 
s.  15  (trustees),  220. 

s.  16  (executors,  power  to  raise  money),  220. 
s.  17  (purchasers  and  mortgagees),  220. 
ss.  19,  20  (inheritance,  descent),  10,  98,  100,  102,  110. 
s.  21  (assignment  of  personalty),  495. 
s.  22  (index  of  crown  debtors),  92. 
s.  23  (payment  of  mortgage  or  purchase-money),  453. 
s.  27  (liability  of  executors  for  rents,  &c),  404. 
s.  28  (exoneration  of  executors  from  rent-charges,  &c),  338. 

22  &  23  Vict.  c.  43,  ss.  10,  11  (inclosure   acts  amendment,   partition),  139.    324, 

325. 

23  &  24  Vict.  c.  38  (property  amendment),  86,  89. 

s.  1  (judgments),  88,  171. 

s.  2  ^  writs  of  execution  to  be  registered),  89,  171. 

s.  6  (restriction  of  waiver),  400. 

s    7  (uses,  scintilla  juris),  294. 
23  &  24  Vict.  c.  53  (Duke  of  Cornwall),  453. 
23  &  24  Vict.  c.  81  (completing  proceedings  under  tithe  commutation  acts).  324, 

368. 
23  &  24  Vict.  c.  83  (infants'  settlements),  66. 


INDEX. 


563 


STATUTES  cited  : 

23  &  24  Vict.  c.  93  (commutation  of  tithes),  347. 
23  £  24  Vict.  c.  115,  s.  1  (crown  bonds,  &c),  92. 

s.  2  (entering  satisfaction  on  judgment),  87. 
23  &  24  Vict.  c.  124,  ss.  35,  39  (purchase  of  reversion  of  leaseholds),  410. 
23  &  24  Vict.  c.  126  (law  and  equity),  246. 
23  &  24  Vict.  c.  126,  s.  2  (relief  from  forfeiture,  &c),  401. 
s.  3  (endorsement  on  lease),  401. 
ss.  26,  27  (dower),  238. 
23  &  24  Vict.  c.  134  (Roman  Catholic  Charities),  23,  70. 
23  &  24  Vict.  c.  136  (charities),  74,  173. 

s.  16  (majority  of  trustees,  power  of,  to  sell,  &c),  74. 
23  &  24  Vict.  c.  145  (power  of  sale,  &c),  308,  429. 

ss.  8,  9  (renewal  of  leases  and  raising  money),  410. 
s.  10  (consent  to  sale,  &c),  308. 
s.  11  (powers  to  sell,  &c,  in  mortgages),  429. 
s.  13  (notice  of  sale),  429. 
s   27  (power  to  appoint  new  trustees),  174. 
s.  28  (death  of  trustee  of  will  in  lifetime  of  testator),  174. 
s.  29  (trustees'  receipts  good  discharges),  453. 
s.  32  (negative  declaration  in  settlements),  309,  430. 
s.  34  (extent  of  the  act),  174,  453. 
24  &  25  Vict.  c.  9  (conveyance  of  land  to  charitable  uses),  70. 
s.  1  (reservation  of  rent,  &c),  70. 
ss.  2-5  (separate  deed;  enrolment),  71,  72,  73. 
24  &  25  Vict.  c.  62  (limitation  as  to  crown  suits),  453. 

s.  2  (Duke  of  Cornwall,  limitations  as  to  suits  by),  453. 
24  &  25  Vict.  c.  91,  s.  31  (stamps),  150. 
24  &  25  Vict.  c.  95  (repeal  of  criminal  statutes),  126. 
24  &  25  Vict.  c.  96,  s.  28  (destruction,  &c,  of  title  deeds),  147. 
24  &  25  Vict.  c.  100  (attainder),  126. 
24  &  25  Vict.  c.  133  (draining),  325. 

24  &  25  Vict.  c.  134  (bankruptcy),  365. 

25  Vict.  c.  17  (charities),  72. 

25  &  26  Vict.  c.  53  (title  and  conveyance  of  real  estates),  466. 

25  &  26  Vict.  c.  67  (declaration  of  title),  466. 

25  &  26  Vict.  c.  73  (inclosure  commissioners),  324,  325,  368. 

25  &  26  Vict.  c.  86  (lunatics),  67. 

25  &  26  Vict.  c.  89  (joint-stock  companies),  78. 

25  &  26  Vict.  c.  108  (sale,  minerals),  309. 

25  &  26  Vict.  c.  112  (charity  commission),  74,  173. 

26  &  27  Vict.  c.  106  (charities),  72. 

27  Vict.  c.  13  (charities),  71,  72,  73. 

27  &  28  Vict.  c.  45  (settled  estates),  26,  33. 

27  &  28  Vict.  C.  112  (judgments),  58,  88,  89,  171,  295,  365,  405,  435. 

27  &  28  Vict.  c.  114  (improvement  of  land),  31. 

28  &  29  Vict.  c.  40  (County  Palatine  of  Lancaster),  174. 
28  &  29  Vict.  c.  96  (stamps),  193. 

28  &  29  Vict.  c.  99  (county  courts),  163,  173,  428. 
28  &  29  Vict.  c.  104  (crown  suits),  92,  93. 
28  &  29  Vict.  c.  122  (simony),  344. 


564 


INDEX. 


STATUTES  cited 


29  &  30  V 

29  &  30  V 

30  &  31  V 
30  &  31  V 
30  &  31  V 
30  &  31  V 
30  &  31  V 
30  &  31  V 

30  &  31  V 

31  Vict 
31  &  32  V 
31  &  32  V 

31  &  32  V 

31  &  32  V 

32  &  33  V 
32  &  33  V 
32  &  33  V 
32  &  33  V 
32  &  33  V 
32  &  33  V 

32  &  33  V 

33  Vict,  c 
33  &  34  V 
33  &  34  V 
33  &  34  V 
33  &  34  V 
33  &  34  V 
33  &  34  V 
33  &  34  V 
33  &  34  V 

33  &  34  V 

33  &  34  V 

34  Vict,  c 

34  &  35  V 

34  &  35  V 

35  &  36  V 

35  &  36  V 
35  &  36  V 

35  &-36  V 

36  Vict,  c 
36  &  37  V 
36  &  37  V 
36  &  37  V 


ct.  c.  57  (inrolment  of  charity  deeds),  73. 

ct.  c.  122  (metropolitan  commons),  325. 

ct.  c.  47  (lis  pendens),  93. 

ct.  c.  48  (auctions  of  estates),  168. 

ct.  c.  69  (mortgage  debts),  437. 

ct.  c.  87  (Court  of  Chancery),  67. 

ct.  c.  231  (companies),  78. 

ct.  c.  142  (county  courts),  163,  169,  428. 

ct.  c.  143  (expiring  laws  continuance),  368. 

4  (sales  of  reversions),  463. 

ct.  c.  40  (partition),  139. 

ct.  c.  44  (sites  of  buildings  for  religious  purposes),  75. 

s.  3  (inrolment  of  deed),  73. 
ct.  c.  54  (judgments),  90. 
ct.  c.  89  (commons),  324,  368. 
ct.  c.  36  (burial  grounds),  173. 

ct.  c.  46  (specialty  and  simple  contract  debts),  83,  170. 
ct.  c.  56  (endowed  schools),  74. 

ct.  c.  71  (bankruptcy),  58,  93,  94,  171,  295,  338,  363,  405. 
ct.  c.  83  (Insolvency  Court),  93,  295,  338,  466. 
ct.  c.  107  (inclosure),  325. 
ct.  c.  110  (charities),  74,  173. 

14  (naturalization),  63,  64,  66,  165,  166. 
ct.  c.  23  (abolition  of  attainders),  23,  57,  68,  126,  166. 
ct.  c.  28  (attorneys'  and  solicitors'  remuneration),  200,  441. 
ct.  c.  34  (trust  funds),  77. 
ct.  c.  35  (apportionment),  29. 
ct.  c.  44  (stamps),  394. 
ct.  c.  56  (limited  owner's  residence),  32. 

ct.  c.  93  (married  women's  property),  225,  226,  232,  384,  408. 
ct.  c.  97  (stamps),  149,  150,  168,  173,  174,  181,  192,  194,  336,341,  375, 

393,  394,  402,  422,  440,  446,  463. 
ct.  c.  99  (stamps  repeal),  181,  192,  193,  336. 
ct.  c.  102  (naturalization),  66. 

13,  s.  4  (exemption  from  Mortmain  Acts),  76. 
ss.  5,  6  (inrolment,  limitation  of  gift),  76. 
ct.  c.  79  (lodgers'  goods  protection),  245. 
ct.  c.  84  (limited  owner's  residence  act  amendment),  31. 

s.  3  (improvements),  31. 
ct.  c.  24  (charitable  trustees  incorporation),  78,  173. 

s.  13  (inrolment),  73. 
ct.  c.  39  (naturalization),  66. 
ct.  c.  50  (railway  rolling  stock  protection),  245. 
ct.  c.  88  (expiring  laws  continuance),  3§8. 

19  (inclosures),  324. 

ct.  c.  42  (tithes  of  market  gardens),  347. 
ct.  c.  50  (sites  for  places  of  worship  and  burial),  75. 
ct.  c.  66  (Supreme  Court   of  Judicature  Act,  1873),  24,  25,   160,  172, 
238,  415. 
s.  16  (transfer  of  jurisdiction),  138,  139,  160. 


INDEX.  565 

STATUTES  cited  : 

36  &  37  Vict.  c.  66,  s.  16,  sub-sect.  9  (transfer  of  jurisdiction),  91. 
sub-sect.  10  (transfer  of  jurisdiction),  91. 
s.  17  (transfer  of  jurisdiction),  91,  138,  100. 
s.  18  (transfer  of  jurisdiction),  160. 
s.  24  (law  and  equity  to  be  concurrently  administered)    176 

178.  ' 

s.  25,  sub-sect.  1  (deceased  insolvents,  now  repealed),  83. 
sub-sect.  2  (express  trust),  455. 
sub-sect.  3  (waste),  25,  26. 
sub-sect.  4  (merger),  415. 

sub-sect.  5  (mortgagor  may  sue  in  his  own  name),  425. 
sub-sect.  7  (time  not  essence  of  contract),  169. 
sub-sect.  8  (injunctions),  24,  178. 
sub-sect.  11  (rules  of  equity  to  prevail),  160. 
s.  34,  sub-sect.  3  (Chancery  Division),  104,  162    178   426. 

36  &  37  Vict.  c.  87  (endowed  schools),  74. 

37  &  38  Vict.  c.  33  (settled  estates),  26,  33. 
37  &  38  Vict.  c.  57  (limitations),  457,  458. 

37  &  38  Vict   c.  76  (inclosure  commissioners),  368. 

37  &  38  Vict.  c.  78,  s.  1  (Vendor  and  Purchaser  Act,  1874),  (forty  years'  title) 
449. 

s.  2  (lessor's  title,  recitals,  title  deeds,  &c),  450,  463. 

s.  4  (reconveyance  of  mortgage),  431. 

s.  5  (bare  trust  estate,  now  repealed),  116,  166. 

s.  6  (married  women,  bare  trustee),  232,  376. 

s.  7  (tacking,  now  repealed),  440. 

s.  8  (registration  of  wills),  221. 
37  &  38  Vict.  c.  83  (Supreme  Court  of  Judicature   Commencement  Act    1874) 
24,  25,  83,  91,  138,  139,  160,  168,  415. 

37  &  38  Vict.  c.  87  (endowed  schools),  74. 

38  &  39  Vict.  c.  77  (Supreme  Court  of  Judicature  Act,  1875),  24,  176. 

s.  2  (House  of  Lords,  commencement),  177. 

s.  7  (idiots  and  lunatics),  67,  172. 

s.  10  (deceased  insolvents,  repeal  of  stat.  36  &  37  Vict.  c.  66 

s.  25,  sub-sect.  1),  83,  169,  170. 
s.  33  (repeal),  177. 
38  &  39.  Vict.  c.  87  (Land  Transfer  Act,  1875),  116,  440,  466,  467. 

s.  48  (repeal   and  amended  re-enactment  of  stat.   37   &   38 

Vict.  c.  78,  s.  5),  116,  166. 
s.  129  (repeal  of  stat.  37  &  38  Vict.  c.  78,  s.  7),  440. 

38  &  39  Vict.  c.  92  (agricultural  holdings),  389,  390,  391,  410   411. 

39  &  40  Vict.  c.  17  (partition),  139. 

39  &  40  Vict.  c.  30  (settled  estates),  26,  33. 

39  &  40  Vict.  c.  37  (crown  rights),  454. 

39  &  40  Vict.  c.  56  (commons),  139,  325,  326. 

39  &  40  Vict.  c.  59  (appellate  jurisdiction),  176. 

39  &  40  Vict.  c.  69  (expiring  laws  continuance),  325,  368. 

39  &  40  Vict.  c.  74  (agricultural  holdings),  389,  410. 

40  &  41  Vict.  c.  18  (settled  estates),  26,  33. 

s.  4  (leases),   27. 

I 


566  INDEX. 

STATUTES  cited  : 

.  40  &  41  Vict.  c.  18,  s.  16  (sale  of  timber),  25. 

s.  17  (costs  of  proceedings  for  protection  of  estate),  34. 
s.  34  (sales),  33. 

s.  36  (investment  of  purchase-money),  33. 
s.  38  (exercise  of  powers).  33. 
ss.  44,  46  (leases  by  tenant  for  life),  26,  27,  229. 
s.  47  (demise  by  husband),  230. 
s.  48  (execution  of  counterpart),  27. 
s.  57  (date  of  settlement),  26. 
40  &  41  Vict.  c.  31  (water  supply),  31. 

40  &  41  Vict.  c.  33  (contingent  remainders),  271,  282,  316,  319,  383. 
40  &  41  Vict.  c.  34  (exoneration  of  charges),  438. 
40  &  41  Vict.  c.  67  (expiring  laws  continuance),  324,  368. 
STATUTES,  merchant  and  staple,  89. 
STEWARD  of  manor,  373. 
STOPS,  none  in  deeds,  196,  220. 
SUBINFEUDATION,  38,  61. 
SUCCESSION,  definition  of  the  term,  287. 

duty,  286-288,  310. 
SUCCESSOR,  287. 
SUFFERANCE,  tenant  by,  389. 
SUIT  of  Court,  121,  122,  125,  126,  366. 
SUPREME  Court  of  Judicature  Acts,  1873,  1875  (see  stats.  36  &  37  Vict.  c.  66,  and  38 

&  39  Vict.  c.  77). 
SURRENDER  of  life  interest,  279. 

of  copyholds,  351,  363,  372,  379,  380,  381,  384,  531. 
nature  of  surrenderee's  right,  375. 
of  copyholds  of  a  married  woman,  375,  376. 
of  a  term  of  years,  413,  416. 
in  law,  408. 
SURVIVORS  of  joint  tenants  entitled  to  the  whole,  133. 

of  copyhold  joint  tenants  do  not  require  fresh  admittance,  368. 


T. 

TABLE  of  descent,  explanation  of,  110. 

TACKING,  439,  440,  442. 

TAIL,  estate,  35,  43,  44,  50,  52,  53,  58,  144,  163,  211,  213,  216,  258,  259. 

derivation  of  word,  43. 

destruction  of  entails,  44. 

quasi  entail,  59. 

constructive  estate,  in  a  will,  215. 

bar  of  estate,  46,  48,  52,  54,  55,  363,  380. 

descent  of  estate,  58,  105,  479. 

tenant  in,  after  possibility  of  issue  extinct,  54. 

tenant  in,  ex provisione  viri,  55. 

equitable  estate,  163. 

no  lapse  of  an  estate,  211. 

joint  tenants  in,  132. 

estate  not  subject  to  merger,  281. 


INDEX.  5G7 

TAIL,  estate  in  copyholds,  359,  362,  365. 

equitable,  in  copyholds,  380. 
TALTARUM'S  case,  44. 

TENANT  for  life,  22,  25,  26,  32,  52— (and  see  Life). 
in  tail,  36 — (and  see  Tail). 
for  life,  feoffment  by,  146. 
in  dower,  leases  by,  237. 
in  fee  simple,  60 — (and  see  Fee  Simple). 
in  common,  136. 
of  copyhold,  368. 
at  will,  389. 

right  of,  to  inspect  court  rolls,  373. 
by  sufferance,  389. 
TENANTS'  improvements,  389,  410. 

fixtures,  411. 
TENEMENTS,  5,  6,  7,  7,  n.,  8,  13. 
TENURE  of  an  estate  in  fee  simple,  117,  127. 
of  an  estate  tail,  117. 

none  of  purely  incorporeal  hereditaments,  339. 
of  copyholds,  366. 
by  knight  service,  120,  123. 
rise  of  copyholds  to  certainty  of,  351. 
TENURES,  feudal,  introduction  of,  3. 

TERM  of  years,  tenant  for,  8,  386,  388,  390,  395— (and  see  Lease). 
long  terms  for  securing  money,  411. 
husband's  rights  in  his  wife's,  407. 
attendant  on  the  inheritance,  416,  417. 
mortgage  for,  430. 
for  securing  portions,  413. 
attendant,  by  construction  of  law,  419. 
TESTATUM,  190,  195,  205,  513. 
THELLUSSON,  Mr.,  will  of,  320. 

Act,  320. 
"THINGS  real,  personal,  or  mixed,"  7,  n. 
TILLAGE,  496,  505. 
TIMBER,  23,  24,  25,  56,  79. 

on  copyhold  lands,  354. 
TIME,  unity  of,  in  joint  tenancy,  132,  135. 

where  not  of  essence  of  a  contract,  168. 
within  which  an  executory  interest  must  arise,  317. 
limited  for  making  entry  on  court  roll  of  disentailing  deed,  380,  n. 
limited  by  statutes  of  limitation,  453,  457,  458,  459. 
TITHES,  345,  457,  497,  509. 
lay,  346,  457. 

distinct  from  the  land,  347. 
commutation  of,  347. 
limitations  of  actions  for,  457. 
TITLE,  443. 

covenants  for,  446,  447,  448,  515. 
sixty  years  formerly  required,  448,  449. 
reasons  for  requiring  sixty  years,  450. 
32 


568  INDEX. 

TITLE,  forty  years  now  sufficient,  449. 

act  for  obtaining  a  declaration  of,  466. 
act  to  facilitate  proof  of,  466. 

Land  Titles  and  transfer  Act  (see  stat.  38  &  39  Vict.  c.  87). 
TITLE  deeds,  destruction,  &c,  of,  149,  n. 
mortgage  by  deposit  of,  432. 
importance  of  possession  of,  461. 
who  entitled  to  custody  of,  461,  462,  464. 
covenant  to  produce,  463. 
attested  copies  of,  463. 
grant  of,  514. 
TITLES  of  honor  are  real  property,  8,  347. 
TRADERS,  debts  of  deceased,  81. 

bankruptcy  of,  83,  n.  (t). 
TRANSFER  of  land,  467. 

of  mortgages,  436. 

of  property,  act  to  simplify  (see  stat.  7  &  8  Vict.  c.  76). 
TREASON,  forfeiture  for,  57,  68,  126,  126,  n.,  166. 

abolition  of  forfeiture,  23,  57,  68,  126,  166. 
TRUSTEE  Act,  1850  .  .  172. 

bare,  116,  166,  172,  232,  376. 
TRUSTEES  made  joint  tenants,  134. 
failure  of  heirs  of,  166. 
bankruptcy  of,  171. 
acts  for  appointing  new,  172-174. 
of  charity  property,  74,  174. 

incorporation  of  trustees  of  certain  charities,  77,  78. 
official  trustees  of  charity  lands,  74. 
stamps  on  appointment  of  new,  173,  174. 

where  they  may  sell  or  mortgage  to  pay  testator's  debts  or  legacies,  219. 
estates  of,  under  wills,  217. 
to  preserve  contingent  remainders,  283,  284. 
such  trustees  not  now  required,  284. 
of  copyholds,  tenants  to  the  lord,  380. 
mortgages  to,  434. 
covenants  by,  on  a  sale,  448. 
receipts  of,  good  discharges,  453. 
TRUSTS,  155,  159,  285. 

declarations  of,  stamp  on,  167,  n. 

in  a  will,  217. 

contingent  remainders  of  trust  estate,  285. 

of  copyholds,  379. 

for  separate  use,  95,  223,  380. 

for  alien,  165. 

limitation  in  cases  of  express,  454,  455,  458. 

not  abolished,  178. 

See  also  Equitable  Estate. 
TURF,  24. 

U. 
UNBORN  persons,  gifts  to,  55,  274,  275,  276,  529. 


INDEX. 

UNDERLEASE,  405,  407. 

mortgage  by,  432. 
UNITIES  of  a  joint  tenancy,  132,  135. 
USER,  immemorial,  458. 

abandonment  by  non-,  460. 
USES,  155,  157,  183,  184,  n.,  196,  290,  294,  313. 

explanation  of,  156,  294. 

statute  of,  does  not  apply  to  copyholds,  379. 

no  use  upon  a  use,  160. 

conveyance  to,  188,  189. 

doctrine  of,  applicable  to  wills,  217. 

springing  and  shifting,  272,  290,  292,  293,  294,  314,  n.,  319,  383. 
examples  of,  290,  291. 

power  to  appoint  a  use,  296. 

to  bar  dower,  304,  514. 
USURY  laws,  repeal  of  the,  434. 


VENDOR,  lien  of,  for  unpaid  purchase-money,  433,  438. 
covenants  for  title  by  a,  447,  515. 

and  Purchaser  Act,  1874  (see  stat.  37  &  38  Vict.  c.  78). 
VESTED  remainder,  252,  262. 

definition  of,  253. 
See  also  Remainder. 
VICARAGES,  advowsons  of,  343. 
VOLUNTARY  conveyance,  78. 
VOUCHING  to  warranty,  47. 

W. 

WAIVER  of  breach  of  covenant  in  a  lease,  400. 
WALES,  common  appendant  in,  504. 
WARDSHIP,  123. 
WARRANTY,  45,  47,  443. 

formerly  implied  by  word  give,  443. 
effect  of  express,  444. 
now  ineffectual,  444. 
WASTE,  23,  24,  25,  79,  505. 
equitable,  25. 
by  copyholder,  355. 
common  appendant,  119,  n.,  489. 
strips  of,  by  the  roadside,  326. 
WATER,  description  of,  41. 

limitation  of  right  to,  459. 
WAY,  rights  of,  328,  459. 
WIDOW,  dower  of,  232,  236,  237. 

freebench  of,  385. 
WIDOWHOOD,  estate  during,  22. 

WIFE,  separate  property  of,  95,  223-225,  228,  n.,  380,  384. 
Married  Women's  Property  Act,  1870,  225,  408. 
conveyance  of  her  lands,  231,  232. 


570  INDEX. 

WIFE,  rights  of,  in  her  husband's  lands,  96,  232,  237,  334,  385. 
appointment  by,  and  to,  300. 
surrender  of  copyholds  to  use  of,  375. 
surrender  of  wife's  copjholds,  376,  381. 
husband's  right  in  her  term,  407. 
See  also  Married  Woman. 
WILL,  tenant  at,  388. 

cannot  bar  an  estate  tail,  55. 
.    construction  of,  19,  20,  212. 

ignorance  of  legal  rnles,  213,  218. 
alienation  by,  62,  203. 
witnesses  to,  204,  206,  299,  377. 
revocation  of,  208,  209. 

of  real  estate,  now  speaks  from  testator's  death,  210. 
gift  of  estate  tail  by,  211.  213,  215,  216. 
.  gift  of  fee  simple  by,  213,  216. 
uses  and  trusts  in  a,  217. 

registration  of,  in  Middlesex  and  Yorkshire,  221,  222. 
exercise  of  powers  by,  2D9,  300. 
executory  devise  by,  312,  314,  315. 
of  copyholds,  376,  377. 
of  leaseholds,  403. 
of  Mr.  Thellusson,  320. 
charge  of  debts  by,  82,  219,  221. 
devise  to  heir,  218. 

devise  in  fee  or  in  tail  charged  with  debts,  221. 
WILLS,  Statute  of,  203. 

new  acts,  21,  204,  214,  215,  299,  335,  403. 
'  Amendment  Act,  1852,  205. 

WITNESSES  to  a  deed,  192. 

to  a  will,  204,  206,  299,  377. 
to  a  deed  executing  powers,  297. 
WORDS,  construed  according  to  their  usual  sense,  15,  20. 
WRIT  of  elegit,  84,  85. 

registration  of,  88,  89. 
WRITING,  employment  of,  on  transfer  of  incorporeal  property,  11. 
formerly  unnecessary  to  a  feoffment,  147. 
nothing  but  deeds,  formerly  called  writings,  148. 
now  required,  151. 

bargain  and  sale  for  a  year  must  be  in,  187. 
required  to  assign  a  lease,  402. 
contracts  and  agreements  in,  167. 
trusts  of  lands  required  to  be  in,  167. 
WRONG,  estate  by,  145. 

Y. 

YARD  lands,  495. 

YEAR  to  yea^  tenant  from,  390,  391. 
YORK  registry,- 194,  201,  221,  464. 
YORKSHIRE,  devise  of  lands  in,  221,  222. 

bargain  and  sale  of  lands  in,  443. 


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